July 9, 2013
COMMONWEALTH OF PENNSYLVANIA Appellee
EDDIE R. GRAY, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
JEREMY C. HODEN, Appellant
Appeal from the Judgment of Sentence September 7, 2012 In the Court of Common Pleas of Warren County Criminal Division at No(s): CP-62-CR-0000264-2012, CP-62-CR-0000267-2012.
Eddie R. Gray ("Gray") and Jeremy C. Hoden ("Hoden") appeal from the judgments of sentence of thirty-five and one-half to seventy-one years imprisonment that were imposed after a jury convicted them at a joint trial of four counts of retaliation against a prosecutor or judicial official, three counts of retaliation against a victim or witness, seven counts of terroristic threats, and one count of conspiracy. Since Gray and Hoden were tried together and they raise identical issues, we have consolidated their appeals for purposes of disposition. After careful review, we affirm.
In order to comprehend the charges at issue in this appeal, it is necessary to set forth the following background information. Hoden was involved in two criminal matters in 2007. In April 2007, Hoden broke into the home of Merle Rice in Warren County, and stole Mr. Rice's cellular telephone, which Hoden used for about one week. In connection with this incident, Hoden was charged with theft and burglary, and, in October 2008, he pled guilty to those charges. At the same time, he pled guilty to charges wherein Irene Rice, Merle's mother, was the victim. Specifically, in August 2007, Hoden broke into Irene's home at approximately 4:30 a.m., beat her with her telephone, took money from her purse, and stole her car. Irene, who was seventy-seven years old at that time, was hospitalized as a result of the incident, and her injuries included a severe cut on her head requiring twenty-seven staples, black eyes, a swollen and cut face, and a broken finger. In Irene's case, Hoden pled guilty to aggravated assault, robbery, and theft of a motor vehicle, and the Commonwealth dismissed charges of burglary, unlawful restraint, and theft. After entry of the guilty pleas, Hoden received a total term of imprisonment of twelve to twenty-four years. Merle and Irene would have been witnesses against Hoden had those matters proceeded to trial.
The charges arising from the August 2007 assault of Irene were investigated by Pennsylvania State Trooper Jeff Walters, who was assigned to the criminal investigation unit barracks in Warren. He and Warren County Assistant District Attorney Elizabeth Feronti instituted the charges with Irene as a victim. ADA Feronti first filed a petition in juvenile court since Hoden was seventeen years old when he assaulted and robbed Irene. ADA Feronti then withdrew the juvenile matter and filed charges against Hoden in adult court. Thereafter, the elected Warren County District Attorney Ross McKeirnan assumed responsibility for prosecuting the matter. Senior Judge William F. Morgan presided over Hoden's guilty pleas, and Judge Maureen Skerda resolved the PCRA petition that Hoden filed regarding the Irene Rice matter, and she denied Hoden PCRA relief.
Starting in January 2012 and ending in February 2012, Hoden and Gray mailed extremely threatening and highly disturbing letters to Judge Skerda, Judge Morgan, DA McKeirnan, ADA Feronti, Irene Rice, and Merle Rice. Those letters gave rise to the present charges, and Hoden and Gray were co-defendants at a jury trial commencing on August 28, 2012. Irene and DA McKeirnan received two letters from each defendant while the remaining victims received one letter from Gray and one letter from Hoden. Trooper Walters did not receive a letter, but he was threatened in those documents. Hence, there are six intimidation convictions but seven terroristic threats offenses. Trooper Walters indicated at trial in the present action that he had uncovered no evidence that Gray, Hoden's cousin, was involved in Hoden's crimes against Irene Rice, but Gray's communications repeatedly indicated that he was involved in that criminal episode and that he was responsible for the brutal attack on the elderly victim. Additionally, Hoden stated in some of his letters that Gray was an accomplice to the crimes and Gray actually was the perpetrator who assaulted Irene.
To summarize, the letters in question threatened the "lives of not only the people [who] were receiving the letters, but also [their] families. And, [went into] great detail on how [Gray and Hoden] were going to do the things that they were going to do to each of the victims." N.T. Trial, 8/28/12, at 45-46. While both Gray and Hoden were in jail when they mailed the letters, those documents indicated that the victims would be killed either when Gray was released from prison or that the co-defendants had the ability to obtain help from outside sources in carrying out their threats. Each piece of correspondence was signed by the sender, and had the sender's name and prison address on the return address portion of the envelope used to mail it.
Commonwealth Exhibit 2 consisted of a February 1, 2012 letter from Hoden to DA McKeirnan. It read:
Just like Irene Rice, (the victim, of my case), you've only subjected yourself and your entire family to a very painful death.
Along with my victim, assistant DA, Sentencing Judge, and arresting Officer. All of you will be massacred. Incriminating, huh?
Even if so, I know a few people to get in touch with that will be creeping around you [all's] places. None of you are safe. As God is my witness. I, myself, cannot wait to see you all again.
N.T. Trial, 8/28/12, at 47.
Irene Rice testified that she received two sets of letters. She read the first pair and handed them over to her son, Merle. When the second two letters arrived, she did not open them, but immediately gave them to Merle. Commonwealth Exhibit 3 is a letter dated January 27, 2012 from Hoden to Irene. It stated the following:
I am pretty sure you remember me, Jeremy Hoden. . . . I tried helping your old fucking ass from bleeding to death after that beating I never had the pleasure to witness. . . .
My cousin snapped, lost his mind. Never ready to off your old ass before I pulled him off because it was never in my intention to have anyone victimized or harassed.
[I] don't feel the remorse I once did for you in 2007. And my cousin has . . . 24 months before he will be creeping up on you in your sleep again to finish what I should have let him finish almost five years ago.
These last five years have been nothing but pain for me and my family. So, today I feel my writing to you today that you should live in fear for the day I get out, because if you are still alive, I am going to be with . . . somebody, to lay you the fuck down in the ground . . . .
Your days are numbered . . . . I will be the one that pulls the trigger that takes the [lives] of your family, yourself, and anyone else close to you. No one is safe.
Id. at 59-61. The first letter that Gray sent to Irene, Commonwealth Exhibit 4, said:
Irene. Listen, you stupid little c---, what the fucking tire iron wasn't an eye opener, when you wrongfully testified on my cousin.
I just want you to know that next time I am beating you, you will fucking die. There won't be no hospital trips. I got two years left. I remember everything about you and the day.
Let me fucking refresh your memory. I may have hit you kind of hard. All I wanted was your fucking car. The stupid blue Fusion is all. So my cousin could leave the damn state.
I do apologize for waking you out of your sleep. You did look peaceful. Ha. Ha. But, I couldn't find your fucking keys. . . .
I would have let this whole thing alone if you would have been honest with the police about what happened. You know damn well it wasn't no phone I beat you with.
My cousin pulled me off you and was going to call the police to help you. No, fuck that. I am going to murder you. There is nothing you can do to prevent that with my own bare hands. I will finish the task.
You know I watched you come in and out of consciousness. I really hoped you were going to croak. Ha. So, I wouldn't have to be going through this again. I want you to know how deep this shit is.
You will not be living too much longer. That I will promise. . . . [J]ust thinking about you and your stupid lies, oh, drives me fucking to saying, God will forgive me, but will he forgive you? Ha.
Do not even think he will. Your lies are only punishable by death. Nothing else. 2 years. The clock is running. Everything has been planned out. Tick! Tock! Bitch!
Sincerely, your death wish.
Id. at 64-66. After reading Gray's letter, Irene became concerned but was confident that Merle would handle the situation for her with the authorities.
In February, Irene received two more letters, one from Hoden and one from Gray. She immediately gave them to Merle without reading them. The letter, Commonwealth Exhibit 5, from Hoden read as follows:
What up old head. Just to follow up to my last letter. My cousin and I think about you so much. More or less in anticipation of the day we get to play God with your life.
But, then, how was Merle doing? Don't . . . think he can save you. No one could fully prove it was either me or Eddie Gray that wrote something that could be so incriminating.
But, yeah, we have considered on premeditating a plot to kill the entire families of you, the prosecution team of Warren judicial system and everyone else in question, as well.
But, hopefully, so much sooner than later. We will be creeping up along you. . . . Your death will be very painful as for anyone else stupid enough to get in the way.
We will see you soon. Happy Valentine's Day.
Id. at 68-69. Gray wrote:
Hey, bitch this is a follow up just to make sure your old ass is still alive, just to let you know me and my cousin still hasn't forgot about you.
Tell Merle I said hi. He probably can be reached on his Verizon cell phone. Tell him I am going to murder his dearest mother.
. . . [D]on't forget to lock the windows just in case I decide to send somebody a little early. Don't be surprised.
I got a tire iron with your name on it. . . . . Tic. . . Toc. . . Tic. . . Toc. . . Your time is running.
Commonwealth Exhibit 6; N.T. Trial, 8/28/12, at 72.
One week after Irene received her first two letters, Merle was sent a letter from both Hoden and Gray. Hoden wrote to Merle:
What up pussy. Damn, I have been waiting on the opportunity to capitalize on writing this letter. My cousin Eddie Gray and myself anticipate the day we get to roll up on your house again.
It will be a matter of time before your mother Irene and yourself are tragically found dead in a smoking pile of ashes. After an unfortunate string of house fires.
At least I hope to see both of you all pictured in the Warren Times Observer obituaries. Bitch ass. Police. You are. You are really going to regret your choice of choosing to service and protect.
While you got it all fucked, is that my cousin and I love this prison shit. You only aided the Commonwealth in to
producing psychopathic killers with nothing but time on their hands to do the necessary research it will take to have your family savagely murdered.
Oh, yeah, don't let me forget to mention the families and lives of those that aided the prosecution. William F. Morgan. [A]DA Elizabeth Feronti. DA Ross McKeirnan. A whole lot of bloodshed.
Words cannot really describe the day and feeling I'll have watching all of you suffer. You should have stuck to the facts. That Verizon phone was only a stepping stone to the brutality and dark side of life you will soon be accompanied by.
Give or take two years, pussy. If not, sooner. You do know I am fighting this case, right? It's looking real great, Merle. You, your ties with the police may have gave me some time, but I know I, am now.
My time will be cut drastically, bringing it so much to the day me and my cousin deplete your existence. Appeals are wonderful.
With nothing to do but live in fear, death is around the corner for you and your mom. Shit. You are better off killing her than yourself. Then yourself.
I promise you by our hands you alls death will be slow agonizing painful. I hope you, and I hope you and you live your life to the fullest in these short times.
You alls time become so much shorter. I hope I can receive some gratification for working you all up to that reality. You all just created a couple of monsters.
We won't be segregated from society forever. Fuck you and everything you stand for. I can't wait to kill you all, so that I can be happy. Well, got to go, well, get at it. Disrespectfully, Jeremy Hoden.
Commonwealth's Exhibit 7; N.T. Trial, 8/28/12, at 91-94. Gray's letter to Merle, Commonwealth's Exhibit 8, was as follows:
Hello, my name is Eddie Gray. You probably have no clue who I am besides being Jeremy's cousin. I also savagely beat your mother within an inch of her life. To be honest, I used to feel bad about the actions I took that night. Not any more.
I wish you would have been home when my cousin went into your house. Anyways, after years of research we came up with very good and a hundred percent full-proof plans to kill you and finish the job on your lying, fucking mother.
You can't in any way, shape, or form alter our plans. They have been made already. I get out anywhere from two years to three years. So, this is just a early warning.
Hell, you might help me. Just never know. I also want you to know I hate cops. So, skinning you alive with your mother to watch with a curling iron jammed up her pussy should be a hot show.
Have you not thought about the consequences of being employed by the Commonwealth? You take people from their families. So, we plan to do the same to you.
Me and my cousin are not new to these type of adventures. Many of the missing people from Warren probably fell fault to us. And, you can never prove it.
Don't be surprised when I show up at your door. Two years really ain't that long. Hell, I will sit in the hole the whole time to ponder and scheme.
The best part is, you can't do shit to me. Ha ha. You are a fucking dead pig. Just a ghost amongst the rest of the human race.
Feet bound to your hands and an apple in your mouth. I can't wait to formally torture your ass. Oh, I am going to love it. Dead pig and whore of a employer found dead on Madison.
Sounds good for the times. And all of the other higher ups of Warren. Dead. And the best part house fires are easy to get away with.
Write back. Better yet, kill yourself.
N.T. Trial, 8/28/12, at 96-98.
Merle testified that when his mother handed him the first set of letters, she was "shaken up." Id. at 100. Irene was concerned that Gray would be released from prison in two years. Merle related that his mother "wasn't sure what to expect. . . . [H]er hands were shaking when she gave me the letters." Id.
A letter dated February 9, 2012, was sent to ADA Feronti from Hoden at the Warren County district attorney's office. It was introduced as Commonwealth's Exhibit 9:
What's good baby girl? You is looking real sexy this past November. It's a damn shame we got off on the wrong foot back in 2008. Even then you was looking fine.
The type of chick I would slow fuck after a few drinks and a fat blunt. [a marijuana cigarette]. . . .
But now, I see you in my dreams. With a barrel of a gun in your mouth while my cousin and I run a vicious train on you. Taking it like, taking it like you some tricking little slut fresh off the strip trying to make a quick $50.
It wouldn't be such a bad look for you now that I think about it. You got any daughters, Ms. Feronti? I bet they are really beautiful, though I do have a minute before I ever get the chance to kidnap and tear them out the frame. Thanks to you.
I got a few ideas on researching your entire family. Plan for them will be no less for you. Believe it with strong conviction. It will be a matter of time before I, myself, my cousin Eddie Ray Gray, take off every known female in your family and take them for what they are worth.
Sex slaves. Almost all of them will eventually be murdered like the rest of your family in due time. So, cross examine the choice you made as a prosecutor.
I hope it was worth it. Before it's all over, you will understand that locking up innocent, locking the innocent provokes the evil inside to the surface then resulting the very reason why this world is such a dangerous place because of people like you.
I promise your death will be very painfully slow and erotic. As for the rest of your female relatives, live your life to the fullest. It will be a matter of time.
Id. at 115-17. February 9, 2012 correspondence sent by Gray to ADA Feronti, Commonwealth Exhibit 10, is too offensive to recite. Gray said he was going to kidnap her and then provided an offensive and detailed description of how he planned to rape her. He concluded, "One day real soon. You are dead, bitch." Id. at 121.
The first letters that Gray and Hoden sent to DA McKeirnan were confessions to various crimes. On January 14, 2012, Gray sent DA McKeirnan correspondence wherein he admitted that he participated in the burglary of Irene Rice's home. Hoden sent DA McKeirnan a communication dated January 19, 2012, wherein Hoden confirmed that Gray accompanied him to burglarize Irene's home. Both men also admitted to participation in other burglaries.
The second set of correspondence that DA McKeirnan received involved threats. Commonwealth Exhibit 14, a February 2, 2012 letter from Gray to that victim, stated:
To say the least, you are dead when I step foot out of any of these State Institutions. I am coming for you and every other government official.
I am going to separate your skin from your body. I was on a verge of changing my life and confessing to a lot of loose ends. But I am on some demonic t[r]ip.
Your family will be next after you. I might skin you alive in front of your kids and all that. . . .
You are going to be a dead piece of shit. You seen what I did to Ms. Rice. I am going to torture you viciously. Put a blow torch to your eyes. Your clock is ticking you little bitch.
You can't even press charges on me. Prove I wrote this. When I catch you, it's a rap. I am going to sew your skin and everybody else['s] skin together and stream it across downtown Warren.
I hope you rot in hell for what you are doing. You put innocent people in jail. My cousin ain't have shit to do with this case. And, look how bad you guys treated him.
You die just like the others. You die just like the others I have killed right under your nose. You are next. I am going to murder you.
I already thought of the perfect way. Two years, pussy. I hope you are still around. Your death wish.
N.T. Trial, 8/28/12, at 153-54. Hoden's second letter to the DA likewise promises to kill him. Id. at 155.
Gray and Hoden each sent letters to Judge William F. Morgan. Hoden's correspondence was dated February 1, 2012, and introduced as Commonwealth Exhibit 16:
Whats popping Willie! Well, a long time no see. You sentenced me back in 2008, aiding the prosecution that ultimately fucked up my whole life.
So, now I have received the necessary info to touch base with you and your family. I figured to be courteous enough to wake you up to a very savage side of life. Check it.
You sentenced me as the suspect to a crime I never fully committed. Might I add a very lengthy stay of 20 plus years. Now, because of your part in sentencing me, my cousin and I promise you, your very own sentence to be murdered and anyone close to you.
Granted that you all got me sitting here for a minute. Some people very close to me will eventually be getting very close to you. Offing you and yours one-by-one.
No attempt at trying to save yourself will work. Your entire world will fall from beneath you and I specially wish to see you suffer like my family has, from my hand in torturing you all in the worst way.
Short and simple. I hope you die before I get the chance to handle this myself.
Id. at 177-78.
Judge Morgan's letter from Gray, Commonwealth's Exhibit 17, dated February 3, 2012, involved threats too horrific to set forth in full. It was addressed to "the dreadful and most dead William F. Morgan." Id. at 181. Gray said he was going to kidnap Judge Morgan, his children, and grandchildren, to cut Judge Morgan with a razor in an intimate body part, to "sear holes" in his body, to remove his teeth, and to make him drink battery acid. Id. at 182. Gray continued that he would remove the fingers of the Judge's grandchildren and force his children to eat the fingers. Gray also promised to shoot all the kidnapped victims execution style and burn the bodies. He concluded with the admonition that Judge Morgan only had two years left and that his clock was ticking.
Judge Skerda received a letter, Commonwealth Exhibit 19, from Hoden after she denied him PCRA relief. It was dated February 2, 2012, and stated:
Take this how you want. You had a real big part in the prosecution of me. My appeals have recently been turned down. Seeing that all that you all want is to have me sit in prison for something out-of-pocket.
I have kept my cool, but now I think you all, you, William Morgan, Ross, Ms. Feronti and all of you alls families recognize what I am truly capable of myself.
Plans are that a few undisclosed people will be sent to pick you all off in the worst ways. Times are real hard for people. And the price it took to off every one in question was a offer no one could refuse.
Are you ready to look like Irene Rice? Well, anticipate it. Only it's your life that will be surely cut shorter. You will not survive. I promise you that.
My satisfaction will be read in the Warren Times Observer, if I can't do it myself, as God is my witness.
Id. at 199. Judge Skerda's letter from Gray dated February 3, 2012, Commonwealth Exhibit 20, was similar in nature:
I just thought I would let you know so you could better prepare yourself. I have about two years left, and it don't matter where I am held when I get out, when I get released, you are fucking dead.
You want to push paper and sign off on appeals? We just signed off on your life. The things I am going to do to you and your family they won't be able to televise the full account of the murder.
But, my face will be the last that you ever process. You bought your ticket. You have seen my work already on Ms. Rice. So, imagine me premeditated.
There won't be no plea bargain for you. You little c--- just a loud place and sonic speed of a bullet. The mutilated disfigurement of a body. Sleep tight.
Don't worry about locking your windows. I am coming right to the door. Two years. Tick tock, tick tock.
Id. at 203-04.
Pennsylvania State Trooper Timothy Wittman was assigned to the criminal investigation unit at the Marienville barracks. He was in charge of the probe involving the threatening letters sent by Gray and Hoden to the six victims. At approximately 2:15 p.m. on February 10, 2012, Trooper Wittman arrived at the State Correctional Institution at Forest to speak with the co-defendants, both of whom were given their constitutional warnings. Trooper Wittman spoke with Hoden first and told him that there were threatening letters mailed to people in Warren County. Trooper Wittman then showed Hoden copies of the correspondence and asked "if he was involved in it. And, he said, yes, that he was. That he wrote the letters." Id. at 235-36.
Trooper Wittman then interviewed Gray, who also was advised about the nature of the investigation. Trooper Wittman showed Gray copies of the documents in question and asked Gray "if he had knowledge of them, and asked him if he wrote them. He advised that he did write the letters." Id. at 238. When Trooper Wittman asked Gray why he sent the correspondence, Gray responded, "[B]ecause when I get out, I am going to kill them." Id. Trooper Wittman said that he did not understand why Gray would make threats against people who were uninvolved in the prosecution, i.e., the family members of those who Gray had threatened. Gray retorted, "I don't care. I am going to kill them[.]" Id. Samples of the handwriting of each defendant were submitted to the jury so that it could compare the handwriting in the samples against the writing in the letters.
Both Hoden and Gray were convicted of four counts of intimidation of a judicial officer or prosecutor, two counts of intimidation of a witness, seven counts of terroristic threats, and conspiracy. On September 7, 2012, they were sentenced to thirty five and one-half to seventy-one years imprisonment, and they both appealed.
APPEAL AT 1503 WDA 2012/GRAY
Gray raises the following issues:
1. Is the evidence sufficient to convict the Appellant on each charge given that there is no physical evidence connecting the Appellant to the letters, there is no expert handwriting analysis, and there is at most a naked extrajudicial confession by the Appellant uncorroborated by independent evidence?
2. Is the evidence sufficient to find the Appellant harmed either Irene Rice or Merle Rice for purposes of the Retaliation Against Witness, Victim or Party statute, when Irene Rice testified that she was not harmed or intimidated, and Merle Rice did not testify to suffering any harm?
3. Is the evidence sufficient to find the Appellant committed a course of conduct pursuant to the Retaliation Against Witness, Victim or Party statute, when the Appellant was charged with one count of this crime for each letter that was received, and Merle Rice only received one letter?
4. Is the evidence sufficient to convict the Appellant on the charge of Retaliation Against Witness, Victim or Party for the letter that was received by Merle Rice, given that he was never a witness, victim, or party to a civil suit?
5. Is the evidence sufficient to convict the Appellant on the charges of Retaliation Against Prosecutor or Judicial Official given that the alleged victims did not suffer any tangible harm?
6. Is the evidence sufficient to convict the Appellant on the charge of Criminal Conspiracy, when his co-defendant Jeremy Hoden testified that there was no conspiracy between them and that Hoden wrote the letters, and there is no other evidence of a conspiracy?
Appellant Gray's brief at 8-9. We review these sufficiency challenges under the following standard of review:
The standard we apply in reviewing the sufficiency of the evidence is whether 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 finder 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. Fabian, 60 A.3d 146, 150-51 (Pa.Super. 2013) (quoting Commonwealth v. Jones, 886 A.2d 689, 704 (Pa.Super. 2005)).
Gray first claims that the evidence was insufficient as to all offenses due to the fact that "a naked extrajudicial confession, uncorroborated by independent evidence, is insufficient to support a conviction." Appellant Gray's brief at 10. Gray relies upon Commonwealth v. McCabe, 498 A.2d 933, 934-35 (Pa.Super. 1985), which discusses the corpus delicti rule. The corpus delicti rule is designed to prevent a conviction based solely upon a defendant's admission to a crime when there is no proof that a crime actually occurred. We recently outlined the parameters of the corpus delicti doctrine:
The well-established corpus delicti rule provides that "a criminal conviction may not stand merely on the out-of-court confession of one accused, and thus a case may not go to the fact-finder where independent evidence does not suggest that a crime has occurred." Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818, 823 (1989). This rule is rooted in the hesitancy to convict a person of a crime solely on the basis of that person's statements. Commonwealth v. Turza, 340 Pa. 128, 16 A.2d 401, 404 (1940).
Commonwealth v. Cuevas, 61 A.3d 292, 295 (Pa.Super. 2013) (footnote omitted). The rule mandates that there be, independent of a defendant's inculpatory statements, proof of a loss or injury and that criminal conduct caused the loss or injury. Id. If the rule is satisfied, then the defendant's statements can be admitted into evidence as additional evidence that a crime occurred. Thus, the corpus delicti rule does not control a determination of whether there is sufficient evidence to sustain a conviction.
Furthermore, in the present case, the corpus delicti was established by the testimony of each victim and the introduction into evidence of the letters that they received. Contrary to Gray's assertion on appeal, the corpus delicti rule does not mandate the existence of any particular type of evidence, such as a handwriting expert or DNA analysis. The witnesses testified with respect to each piece of correspondence and indicated that either Gray or Hoden signed it and that it arrived in an envelope with Hoden or Gray as the sender and the prison as the sender's address. All of the communications, except the first two to DA McKiernan, contained threats to kill and/or commit other acts of violence against the victims and/or their families. Thus, there was independent proof of injury to each person consisting of a threat to commit bodily harm and/or death, and the harm was the result of criminal conduct. Gray's confession was therefore admissible to establish that he sent each piece of correspondence that purported to be from him. The letters, coupled with Gray's admission, were sufficient to support the offenses, and we reject Gray's first contention on appeal.
Gray's next averment relates to retaliation against a witness. He argues that he is not guilty of the offense as to Irene Rice because she related at trial that she was not alarmed when she received the letters due to her faith that her son would handle the matter with authorities. The crime of retaliation against a witness or victim is outlined in 18 Pa.C.S. § 4953(a), which provides: "A person commits an offense if he harms another by any unlawful act or engages in a course of conduct or repeatedly commits acts which threaten another in retaliation for anything lawfully done in the capacity of witness, victim, or a party in a civil matter." Thus,
in order to obtain a conviction, assuming an intent to retaliate, the Commonwealth can sustain its burden by proving any one of the following three scenarios: (1) that the defendant harmed another by any unlawful act; or (2) that the defendant engaged in a course of conduct which threatened another; or (3) that the defendant repeatedly committed acts which threaten another.
Commonwealth v. Ostrosky, 909 A.2d 1224, 1228 (Pa. 2006). The Ostrosky Court held that the harm element is satisfied only when there is objective harm beyond that which the victim would naturally suffer, such as concern or intimidation, from having been subjected to the threat itself. The Court continued that, if there is no harm, the statute requires that "in order for threatening behavior to be actionable, it must be recurrent." Id. at 1232. In that case, the Court upheld our reversal of the defendant's conviction of retaliation against a witness where the defendant verbally threatened to assault the two victims in question on only one occasion and where the victims manifested no harm beyond being concerned and intimidated.
In this case, we conclude that there was recurrent conduct with respect to Irene Rice. In this connection, we first apply the well-established precept that, "Each co-conspirator is liable for the actions of the others if those actions were in furtherance of the common criminal design." Commonwealth v. King, 990 A.2d 1172, 1178 (Pa.Super. 2010). Gray is thus responsible for the correspondence sent by Hoden, his partner in threatening Irene Rice, who received four pieces of written communication containing vile threats. Additionally, as analyzed in full infra, Hoden and Gray's conduct with respect to Merle Rice can also be considered in connection with communications made to his mother. Therefore, even though Irene did not suffer harm as defined under the statute in question, Gray committed more than one act and exhibited a course of conduct and recurrent threatening acts sufficient to establish the elements of the crime in question.
In connection with Merle Rice, Gray raises two challenges to his conviction of retaliation against a witness. He first avers that Merle Rice was not a witness to the burglary of his mother's house and thus was not being threatened due to his status as a witness. Assuming, for the sake of argument, that Merle would not have testified at his mother's action regarding her injuries, he was also a victim of a burglary committed by Hoden. Hoden's sentence resulted from entry of guilty pleas at two criminal actions; Merle was the victim of one crime and would have been a witness in connection with that prosecution. Furthermore, the theft of Merle's cellular telephone was referenced in one of the letters and the burglary of his home mentioned in another piece of correspondence. Thus, the evidence was sufficient to establish that the threats against Merle were made in connection with his status as a witness.
We also reject Gray's position that there was no course of conduct in connection with Merle Rice since he received only two letters from the co-defendants. The action involving Merle as a burglary victim was resolved by a guilty plea entered simultaneously with the guilty plea tendered with respect to the offenses against Merle's mother. That guilty plea resulted in the sentence against Hoden that was the genesis of the threats made against both the potential witnesses in those cases as well as the prosecutors and judges who handled the cases. Hoden and Gray's letters to Merle and Irene displayed a course of conduct and recurrent acts in connection with imposition of that same sentence and can therefore be considered together. The six letters were sufficient to prove a course of conduct. Hence, we reject Gray's two challenges to the sufficiency of the retaliation offense involving Merle Rice as a victim.
Gray's fifth position relates to all four convictions of retaliation against a prosecutor or judicial official, which crime is outlined in 18 Pa.C.S. § 4953.1(a): "A person commits an offense if he harms or attempts to harm another or the tangible property of another by any unlawful act in retaliation for anything lawfully done in the official capacity of a prosecutor or judicial official."
Gray notes that the term "harm" is not defined in that provision. He urges us to adopt the definition of harm outlined in Ostrosky and observes that each victim did not suffer any harm beyond that resulting from the threats themselves. Gray notes that some of the victims, such as DA McKeirnan, were not alarmed by the letters.
Gray overlooks that this statute, unlike the crime of retaliation against a witness, does not indicate that "harm" must exist. Rather, it is sufficient if the defendant "attempted" to cause harm. The vile and repugnant nature of the communications received by Judge Skerda, Judge Morgan, DA McKiernan and ADA Feronti cannot be overstated. They bear no resemblance to the assault threats examined in Ostrosky. The actions that Gray said that he would commit with respect to ADA Feronti and Judge Morgan are so vile that we could not reproduce them. Indeed, ADA Feronti was pregnant when the letters were sent to her office, and her colleagues did not allow her to view them for fear she would suffer a miscarriage.
Additionally, even though Gray and Hoden were incapable of performing the heinous acts for two years, they also informed victims that there were people outside of prison who were available to perform the acts. Moreover, there was an insidious, menacing air of immediacy in the communications. Gray repeatedly used the terms, "tick, tock, time is running out." The victims were told to be on alert continually for the possibility of being shot in the head, burnt, and tortured. In some cases, family members were threatened. Finally, Hoden and Gray sent their letters contemporaneously so that each victim received them at the same time in order to heighten the physical fear and mental anxiety a lone letter might cause. Given all these circumstances, the record sustains a finding beyond a reasonable doubt that Gray and Hoden attempted to objectively harm their victims beyond causing concern or intimidation that would naturally flow from receipt of menacing letters, in and of itself. Cf. Commonwealth v. Helsel, 53 A.3d 906, 918 (Pa.Super. 2012) (quoting 18 Pa.C.S.A. § 901(a)) ("A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.").
Thus, while Gray and Hoden were unsuccessful in causing the prosecutors and judicial officials objective harm, Gray and Hoden's language and synchronicity in mailing the letters unequivocally demonstrated that they had the specific intent to cause objective harm to each victim beyond concern or intimidation. They therefore attempted to cause such harm.
Hence, we reject this challenge to the sufficiency of the evidence supporting the offenses of retaliation against a prosecutor or judicial officer.
Gray's final averment is that the evidence was insufficient to sustain his conviction for conspiracy:
The crime of conspiracy is set forth in 18 Pa.C.S. § 903(a):
A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2)agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
Pursuant to § 903, the Commonwealth must establish that "1) the defendant entered into an agreement with another to commit or aid in the commission of a crime; 2) he shared the criminal intent with that other person; and 3) an overt act was committed in furtherance of the conspiracy." Commonwealth v. Knox, 50 A.3d 749, 755 (Pa.Super. 2012), appeal granted on other grounds, 2013 WL 2451355 (Pa. 2013). The Commonwealth does not have to prove that there was an express agreement to perform the criminal act; rather, a shared understanding that the crime would be committed is sufficient. Id. This Court has indicated that four factors are to be utilized "in deciding if a conspiracy existed. Those factors [are]: '(1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy.'" Commonwealth v. Feliciano, 2013 WL 1971946, 4 (Pa.Super. 2013) (quoting Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002)).
Herein, Gray and Hoden were cousins and acted in concert on eight occasions, sending letters received by each victim simultaneously. They both admitted knowledge of the crimes and were present at the same prison when the letters were mailed. Each defendant participated in the object of the conspiracy. Both were involved in the underlying crimes in question, and threatened to kill the six victims. Hence, there was sufficient evidence to sustain the jury's finding that there was a conspiracy between them.
APPEAL AT 1677 WDA 2012/HODEN
In his appeal, Hoden raises two averments: "1. Was there a lack of evidence for the charge of Retaliation against Witness of Victim, 18 Pa. C.S.A. § 4953?; 2. Did the Court abuse its discretion in regard to sentencing?" Appellant Hoden's brief at 4.
Hoden's first issue is that his convictions for intimidation of a witness are infirm since there was no harm, no course of conduct, and no repeated acts. We reject his position for the reasons outlined extensively infra in connection with Gray's appeal.
Hoden raises a challenge to the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not guarantee an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000). An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Prisk, 13 A.3d 526, 532-533 (Pa.Super. 2011) (citation omitted).
In this case, Hoden did not include in his brief a separate statement of the reasons for allowance of appeal from the discretionary aspects of his sentence, as required by Pa.R.A.P. 2119(f) ("An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence."). The Commonwealth has duly objected to this omission. Commonwealth's brief at 12 ("Hoden has failed to include the statement required by Rule 2119(f) and the Commonwealth hereby objects. As a result, the issue is waived."). "[W]e are precluded from reaching the merits of" a claim regarding the discretionary aspects of a sentence "when the Commonwealth lodges an objection to the omission of the [Pa.R.A.P. 2119(f)] statement." Commonwealth v. Roser, 914 A.2d 447, 457 (Pa.Super. 2006) (quoting Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa.Super. 2006)). Thus, Hoden's second issue is waived.
Judgments of sentence affirmed.