Com. v. Verwys, P.

J-A17019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

PETER STEVEN VERWYS,

Appellant No. 817 EDA 2014

Appeal from the Judgment of Sentence February 10, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001156-2013

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

PETER STEVEN VERWYS,

Appellant No. 818 EDA 2014

Appeal from the Judgment of Sentence Entered February 10, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001154-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 20, 2015

Appellant, Peter Steven Verwys, appeals from the judgments of

sentence entered in two separate cases. In the case docketed at 817 EDA

2014, Appellant was convicted of terroristic threats and was sentenced to a

term of incarceration of 21 days to 1 year. In the case docketed at 818 EDA
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2014, Appellant was convicted of possession of a small amount of marijuana

and possession of drug paraphernalia, and was sentenced to a fine of $500

and a term of one year probation, imposed to run consecutively to his term

of incarceration. On appeal, Appellant challenges the court’s denial of his

pretrial motion to suppress the marijuana and paraphernalia, as well as the

sufficiency of the evidence to sustain his terroristic threats conviction. After

careful review, we affirm Appellant’s judgment of sentence in the case

docketed at 817 EDA 2014 (terroristic threats), and reverse his judgment of

sentence in the case docketed at 818 EDA 2014 (possession of marijuana

and possession of paraphernalia).

The trial court set forth the factual and procedural history of this case

as follows:

Appellant was driving his vehicle on Route 209 Milford
Road near Sellersville Drive, East Stroudsburg, Pennsylvania.
Pennsylvania State Police Trooper Mark Puopolo noticed the
vehicle had an expired tag and registration sticker. Trooper
Puopolo initiated a traffic stop and pulled Appellant's car to the
side of the road. After identifying Appellant, Trooper Puopolo
discovered that there was an outstanding warrant for his arrest.
He called for backup and Troopers Smith and Stanco arrived at
the scene to assist him. Appellant was then arrested and placed
in the back of the police vehicle to be taken for arraignment on
the charges underlying the warrant. N.T. Trial, 12/9/2013, pp.
17-34.

While Appellant was under arrest, Trooper Puopolo went
back to Appellant's vehicle to secure two firearms that were in
plain view. Trooper Puopolo then conducted an inventory search
of Appellant's car and found a small amount of marijuana and a
glass pipe in the center consol. At the Suppression Hearing,
Trooper Puopolo testified that part of the inventory search was
to search for valuable items in the car so the items would not be

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stolen while the car is unattended. When Trooper Puopolo told
Appellant his car would need to be towed, Appellant told him he
would call his girlfriend and have her come and remove the
vehicle from the road. Appellant's car was ultimately never
towed and the inventory search was conducted prior to
dispatching the tow truck. N.T. Trial, 12/9/2013, pp. 17-34; N.T.
Preliminary Hearing, 5/8/2013, pp. 5-14.

After Appellant was released from custody, Pennsylvania
State Police received a phone call from Appellant's brother,
Patrick Verwys ("Verwys"). He told Police that Appellant was
sending him text messages saying he intended to kill Trooper
Puopolo, who was stationed at the Swiftwater Barracks. Trooper
Robert Lombardo told Verwys to forward the text messages to
him. The text messages that Verwys sent read[, verbatim]:

i really don't wana live anymore. i feel like shit everyday.

that i just cannot be left alone. he had to keep going. they
wana invent shit. im sick to my stomach with the way i get
treated. i am a native citizen and they wana fuck me over
and over. i try to play by the rules. u took my guns. pot
and pipe. i am gonna kill him with a 8000 lb truck. i know
what will happen to a crown vic at 100.

no. i will find him. there is doing something wrong and
there is inventing it. u wana turn 1 think into another. i
wana eliminate a bad apple.

dont waste ure time. the police are there to waste my
time. they are very predictable. he is gonna get it. i wasnt
smoking and driving. they wana invent stuff i dont seee
why i am here. i feel like twice a week i get kicked around
by something. i smoke pot to ease my back pain and helps
me eat. so he takes 75$ away from me and my pipe. im
done.

they dont care about my life. i don't care about his. let me
waste some $ on a lawyer. why not.

go to swiftwater. they get off at 3. give him the heads up
to go on vacation.

Verwys forwarded the above messages and, based on this
information, Pennsylvania State Police Sergeant William Cawley
had four troopers guard the Pennsylvania State Police Swiftwater

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Barracks ("Barracks") parking lot with assault rifles and shields
at approximately 3 pm. For safety reasons, people coming to the
station were turned away, and people already there were not
allowed to leave and [were] moved to the interior of the
Barracks. All troopers that were on patrol were instructed to look
for Appellant's vehicle. In addition, state police were prevented
from reporting to other incidents during this time because all of
its resources were focused on protecting the Barracks and its
occupants and on finding Appellant.

State Police contacted Verizon Wireless, Appellant's cell phone
service provider, and obtained a ping on his location because of
the ongoing emergency. The ping showed that Appellant was not
in the area of the Barracks and that he was at his residence. At
approximately 4 pm, Sergeant Cawley had the troopers that
were guarding the Barracks stand down. N.T. Trial, 12/9/2013,
pp. 77, 170.

Sergeant Cawley decided not to immediately apprehend
Appellant and wait until the morning because of the location of
Appellant's residence, that it was after dark, and that the
Barracks had limited manpower. Throughout the night, police
continued to ping Appellant's location every 15 to 30 minutes.
Id. at p. 169.

Troopers regrouped at 7 am the next morning and obtained
an arrest warrant for Appellant. Sergeant Cawley, Corporal
Cramer, and Corporal Chulock went to Appellant's residence.
Corporal Chulock proceeded to the interior of the house and
encountered Appellant. Chulock yelled to Appellant and told him
to not move and put his hands in the air. Appellant ran into the
woods behind the house. For safety reasons, police did not follow
Appellant into the woods. Police set up a perimeter around the
area and called the SWAT team to start a search. Id. at pp. 180-
82.

Between approximately 1 to 2 pm, Appellant came out of the
woods and surrendered himself to Police.

From reviewing Appellant's phone records, police discovered
additional messages sent from Appellant to his brother that were
not forwarded on May 5, 2013. At trial, the Verizon Wireless
Custodian of Records testified for the Commonwealth. The
additional text messages read[, verbatim]:

i am going to kill him. i am so sick of them.

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they want someone to make the news. They got it.

there is no nore talking. He escalated this way to far.

a working man with chop saws and plasma cutters of
value. they ask me if I have anything valuable in truck. i
guess pot is worth his life. they just wana add charges.
guess he chose wrong. stay there. You won't. im lookin for
him.

i want it written so when they do an investigation maybe
the next one might think harder.

dont waste ure time. no money. lawyer. I asked him if he
wants to open that can of worms. he chose the path.

since u called them i want all 4 back and i will act like this
day never happened. im shutting phone off im outta of
here. this jerk off keeps calling me.

i am not gonna stop till i get justice or they give me my
shit back.

no. when its home. you may see me. till then im gonna
look for them.

im 8 miles awy on a mission.

im not getting tracked.

nope. got get my shit from piggy before i do.

i told the pig he was openeing a can of worms. He made
the choice. what did he think i was gonna pay a fine and
smile to the judge. these assholes think im stupid. When
my shit is back I will calm down noone will ever be
harmed.

i smiled and did what i needed to get out. He shouldve did
his part. he charged me now its my time. it’s very simple.
give me my shit back or im gonna waste alot of peoples
time.

haha. tell them thats not smart. Tell them if they were
smart they would give me my shit back. Its that simple.
they dont wana fmd me. i know hes off work and i will find
them. lazy pigs are too predictable. i watch out for them
too much.

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nope. There wasnt much to give them. i took a drive to
find him. i am gonna kill him.

no they took my shit. im gonna take one of them. there
more scared. they wont find me but they will find them.
there the hunted now. I just want my shit back. if i get it
back i wont harm a soul. i have no intention to. he opened
a book with no end. i just want my shit back. i could care
less if i can get them tomorow or not. i want everything
back. they want a make a criminal i will even the playong
field.

no thanks i eat when i got home and dropped truck. its too
easy to find.

On June 11, 2013, two Criminal Informations were filed: 1154
CRIMINAL 2013 and 1156 CRIMINAL 2013.

Case number 1154 CRIMINAL 2013 charged Appellant with
Possession of a Small Amount of Marijuana for Personal Use,
Possession of Drug Paraphernalia, Driving an Unregistered
Vehicle, and Operating a Vehicle Without a Valid Inspection.

Case number 1156 CRIMINAL 2013 charged Appellant with
Terroristic Threats with Intent to Terrorize Another.

Appellant was arraigned on June 12, 2013.

On July 12, 2013, Appellant filed omnibus pretrial motions,
and a hearing on Appellant's motions was held on August 26,
2013. We denied Appellant's omnibus motions in an Order and
Opinion dated October 29, 2013, which we incorporate here.

On December 3, 2013, Appellant filed a [“]Motion in Limine to
Exclude the Commonwealth's Reference to Appellant Being
Arrested on Arrest Warrant[”] and an accompanying brief in
support of the motion. On December 5, 2013, the
Commonwealth filed a [“]Brief in Opposition to Appellant's
Motion in Limine.[”] We orally denied the motion reasoning that
referencing the arrest warrant was allowed under res gestae.

On December 10, 2013, a jury found Appellant guilty of
Terroristic Threats with Intent to Terrorize Another, Possession
of Marijuana—Small Amount Personal Use, and Possession of
Drug Paraphernalia. The jury also found that the Commonwealth
had proven beyond a reasonable doubt that the threat caused
the occupants of the building, place of assembly or facility of

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public transportation to be diverted from its normal or customary
operations, thus making this offense a third degree felony under
18 Pa.C.S. § 2706(d). That same day, Appellant was found guilty
after a bench trial of Driving an Unregistered Vehicle and
Operating a Vehicle Without a Valid Inspection and sentenced to
pay a fine of $100.31.

On February 10, 2014, Appellant was sentenced to a period of
incarceration of not less than 21 days[’] nor more than 1 year
for the Terroristic Threats offense, one year of probation for
Possession of Drug Paraphernalia to run consecutive to the
sentence for Terroristic Threats, and a $500 fine for Possession
of a Small Amount of Marijuana. Appellant was given a 21-day
time credit and placed on immediate parole.

On March 11, 2014, Appellant filed a Notice of Appeal to the
Pennsylvania Superior Court.[1] Also on March 11, 2014, this
Court ordered Appellant to file a Concise Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) within
21 days of the date of the Order. On April 1, 2014, the Rule
1925(b) statement was filed.

Trial Court Opinion (TCO), 5/21/14, at 2-8 (footnotes omitted).

Herein, Appellant raises three issues for our review:

a. Where a vehicle is immobilized for failing to have a
registration but the vehicle poses no threat to public safety, can
the vehicle be lawfully impounded and therefore subject to an
inventory search?

b. Where the driver of a vehicle is arrested, but the police do not
remove or attempt to remove the vehicle and the police have a
protocol in place that allows the arrestee to coordinate for the
alternative removal of the vehicle, can the vehicle be lawfully
inventory searched?

c. Are the text messages sufficient to sustain a conviction for
Terroristic Threats where [the] text messages were sent from
____________________________________________

1
Appellant filed separate notices of appeal in each of his two cases. On April
9, 2014, he filed with this Court an application for consolidation, which we
granted by order dated April 28, 2014.

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one brother to another brother complaining about the first
brother’s interaction with the state police that particular day, and
the messages are later forwarded by the receiving brother to the
[s]tate [p]olice?

Appellant’s Brief at 7.

Appellant’s first two issues challenge the trial court’s denial of his

pretrial motion to suppress the marijuana and paraphernalia found in his car

during the inventory search. We need not address the claims set forth in

Appellant’s first issue because, for the reasons stated infra, we agree with

Appellant that the inventory search of his vehicle was illegal based on the

argument he presents in his second issue.

Our standard of review for denial of a suppression motion is as follows:

In reviewing an order from a suppression court, we consider the
Commonwealth’s evidence, and only so much of the defendant’s
evidence as remains uncontradicted. We accept the suppression
court’s factual findings which are supported by the evidence and
reverse only when the court draws erroneous conclusions from
those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

In examining the validity of the inventory search conducted in this

case, we apply the following legal principles:

A warrantless inventory search of an automobile is
different from a warrantless investigatory search of the same. An
inventory search of an automobile is permitted where: (1) the
police have lawfully impounded the automobile; and (2) the
police have acted in accordance with a reasonable, standard
policy of routinely securing and inventorying the contents of the
impounded vehicle. A warrantless investigatory search of an
automobile requires both a showing of probable cause to search
and exigent circumstances.

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In determining whether a proper inventory search has
occurred, the first inquiry is whether the police have lawfully
impounded the automobile, i.e., have lawful custody of the
automobile. The authority of the police to impound vehicles
derives from the police's reasonable community care-taking
functions. Such functions include removing disabled or damaged
vehicles from the highway, impounding automobiles which
violate parking ordinances ... and protecting the community's
safety.

The second inquiry is whether the police have conducted a
reasonable inventory search. An inventory search is reasonable if
it is conducted pursuant to reasonable standard police
procedures and in good faith and not for the sole purpose of
investigation.

Commonwealth v. Chambers, 920 A.2d 892, 895 (Pa. Super. 2007)

(quoting Commonwealth v. Henley, 909 A.2d 352, 359 (Pa. Super. 2006)

(en banc) (citations and quotation omitted)).

In the present case, the trial court concluded that Trooper Puopolo

lawfully impounded Appellant’s vehicle under 75 Pa.C.S. § 3352(c)(3). That

provision of the Motor Vehicle Code (MVC) states:

(c) Removal to garage or place of safety.--Any police officer
may remove or cause to be removed to the place of business of
the operator of a wrecker or to a nearby garage or other place of
safety any vehicle found upon a highway under any of the
following circumstances:

***

(3) The person driving or in control of the vehicle is
arrested for an alleged offense for which the officer is
required by law to take the person arrested before an
issuing authority without unnecessary delay.

75 Pa.C.S. § 3352(c)(3).

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Applying section 3352(c)(3) to the facts of this case, the trial court

reasoned:

Here, [Appellant] was arrested pursuant to an outstanding
warrant. His car was unregistered. He was driving his car when
he was arrested, and he was the only occupant of the car. His
car was parked on the side of the highway. Thus, Trooper
Puopolo properly could have impounded the car, and the car was
in police custody.

Trooper Puopolo testified he intended to have the car
towed because [Appellant] was under arrest. He conducted the
inventory search prior to [Appellant’s] telling him that he wished
to call his girlfriend to pick up the car. Thus, the car was
properly in police custody and was going to be towed.

Suppression Court Opinion (SCO), 10/29/13, at 7.

Appellant, however, argues that while section 3352(c)(3) may have

provided Trooper Puopolo with the authority to impound his vehicle, a lawful

impoundment (and inventory search) did not occur because Trooper Puopolo

did not follow the Pennsylvania State Police (PSP) protocol for handling a

vehicle when the driver is arrested. Namely, Trooper Puopolo testified at the

preliminary hearing (the transcript of which was entered into evidence at the

suppression hearing), that upon the arrest of a driver, the PSP protocol

provides an officer with “the option to tow the vehicle.” N.T. Preliminary

Hearing, 5/8/13, at 9. When later asked “what is the protocol … when it

comes to vehicle stops and vehicles that are on the side of the road[,]”

Trooper Puopolo responded, “[t]he protocol is to tow the vehicle unless they

[the driver] can make alternative arrangements.” Id. at 19 (emphasis

added). Appellant avers that “[b]y permitting a driver to make alternative

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arrangements, the vehicle is not impounded or in the custody of the [PSP].

Rather, as in [Commonwealth v.] Lagenella, [83 A.3d 94 (Pa. 2013),] it is

merely immobilized until the decision is made by the driver and the driver’s

agent arrives.”2 Appellant’s Brief at 25.

A similar argument was addressed by this Court in Commonwealth v.

Chambers, 920 A.2d 892 (Pa. Super. 2007). There, Chambers challenged

the validity of an inventory search of his vehicle by arguing that under the

police protocol, the officer “was required to determine whether [Chambers]

wanted to make towing arrangements personally, thus obviating the need

for impounding [his] pick-up truck and conducting an inventory search….”

Id. at 896. Chambers’ argument was based on his “interpretation of

General Order D88.8, pursuant to which [the] [o]fficer … conducted the

inventory search.” Id. Because the Commonwealth had “properly attached”

General Order D88.8 “as an exhibit to the suppression notes of testimony[,]”

this Court was able to assess the requirements of that order. Id. at 896

n.3. Upon doing so, we concluded:

A plain reading of the General Order at issue reveals that,
contrary to [Chambers’] assertion, [the] [o]fficer … was not
required to determine whether [Chambers] wished to make
reasonable alternate arrangements for the pick-up truck, thus
obviating the need for an inventory search. The General Order
explicitly provides that officers are authorized to tow a vehicle if
____________________________________________

2
In Lagenella, our Supreme Court held that a police officer is not
authorized to conduct a warrantless search of a vehicle where it is merely
immobilized and not impounded. Lagenella, 83 A.3d at 105-106.

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it is illegally parked or obstructing the normal and safe
movement of traffic. There is no qualifying provision for this
authority. Therefore, contrary to [Chambers’] assertion, [the]
[o]fficer … did not disregard the police department’s standard
inventory search procedures.

Id. at 896-897 (footnotes omitted).

Unlike in Chambers, here, the only evidence produced by the

Commonwealth to establish the policy of the PSP regarding impounding and

searching vehicles was the testimony of Trooper Puopolo; the

Commonwealth did not provide documentary evidence of any written PSP

procedures.3 While Appellant is correct that Trooper Puopolo testified that

“[t]he protocol is to tow the vehicle unless they [the driver] can make

alternate arrangements[,]” shortly thereafter, the trooper conflictingly

stated, “[i]t is in our regulations to tow the vehicle.” N.T. Preliminary

Hearing at 19. Based on this record, it is unclear whether the policy of the

PSP is to automatically tow (and inventory search) a vehicle when the driver

is arrested, or to only tow the vehicle if the driver cannot make alternative

arrangements for the vehicle’s removal. There was also no testimony by

Trooper Puopolo that an inventory search is conducted by the PSP regardless

____________________________________________

3
We acknowledge that the Commonwealth is not required to present the
court with the police department’s written policy governing inventory
searches. See Commonwealth v. Gatlos, 76 A.3d 44, 59 (Pa. Super.
2013).

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of whether a vehicle will be towed or removed by an agent of the arrested

driver.4

Based on this record, we are constrained to conclude that the

Commonwealth did not meet its burden of proving that the inventory search

was conducted pursuant to reasonable, standard police procedures. See

Chambers, 920 A.2d at 895; Commonwealth v. West, 937 A.2d 516,

526-527 (Pa. Super. 2007) (stating the Commonwealth must prove the

legitimacy of the inventory search).5 Therefore, the court erred by denying

____________________________________________

4
In Chambers, we noted that the officer “testified that, even if [Chambers]
had personally made arrangements for the vehicle to be towed, his
department would still require an inventory search for valuables in order to
protect the police’s integrity.” Chambers, 920 A.2d at 897 n.6. We also
pointed out that Chambers did “not proffer[] any evidence that he would
have been able to make alternate arrangements for the pick-up truck.” Id.
To the contrary, here, it is undisputed that Appellant did make alternative
arrangements to have his girlfriend remove his vehicle.
5
We additionally note that this Court has “reject[ed] the notion that police
may seize a vehicle merely because they arrest the owner.” West, 937
A.2d at 527; Commonwealth v. Hennigan, 753 A.2d 245, 260 (Pa. Super.
2000) (“[W]here the sole issue is the safety of a defendant’s legally parked
vehicle pending an arrest, the police do not have the authority to impound
said vehicle absent some reasonable nexus to the alleged crime or to a
community care-taking responsibility.”). In Hennigan, we concluded that
the authority of police to impound a vehicle under section 3352(c)(3) is
invoked “where the vehicle poses a possible public safety concern or traffic
control concern if left unattended.” Hennigan, 753 A.2d at 258. Stated
another way, section “3352(c)(3) authorizes police to impound a vehicle in
circumstances that involve the community care-taking functions of the
police, such as public safety concerns and traffic control concerns….” Id. at
259. In this case, Trooper Puopolo testified that Appellant’s vehicle was not
blocking traffic; it was parked “on the shoulder [of the roadway] over the
right fog line.” N.T. Preliminary Hearing at 14. Therefore, while Appellant
(Footnote Continued Next Page)

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Appellant’s motion to suppress the marijuana and paraphernalia discovered

in his vehicle. Consequently, we reverse his judgment of sentence for

possession of a small amount of marijuana and possession of drug

paraphernalia.

However, for the following reasons, Appellant’s judgment of sentence

for terroristic threats must be affirmed, as his challenge to the sufficiency of

the evidence to sustain that conviction is meritless. In Commonwealth v.

Koch, 39 A.3d 996 (Pa. Super. 2011), we stated:

In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.

Id. at 1001.

Appellant challenges his conviction of terroristic threats.

The Crimes Code states that terroristic threats exist 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). Thus, to obtain a conviction for
_______________________
(Footnote Continued)

does not raise this specific challenge to the validity of the inventory search,
it does not appear that the Commonwealth presented sufficient evidence
that Appellant’s vehicle posed a public safety or traffic control concern to
justify its impoundment under section 3352(c)(3).

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making a terroristic threat, the Commonwealth must prove that
(1) the defendant made a threat to commit a crime of violence;
and (2) such threat was communicated with the intent of
terrorizing another or with reckless disregard for the risk of
causing terror. Commonwealth v. Kelley, 444 Pa. Super. 377,
664 A.2d 123, 127 (1995).

In re L.A., 853 A.2d 388, 391-392 (Pa. Super. 2004). Additionally, “[a]

direct communication between the defendant and the victim is not required

to establish the crime of terroristic threats.” Id.

Here, it is clear that Appellant’s threats to Trooper Puopolo were

indirect, as Appellant transmitted his threatening text messages to his

brother, not to the trooper. While Appellant acknowledges that direct

communication of a threat is not necessary, he maintains that “in cases

where a direct communication was not found to be required, there was a

close connection between the person to whom the threat was directed (the

listener) and the target of the threat (the non-present party).” Appellant’s

Brief at 27. Appellant contends that here, there was no close connection

between Appellant’s brother and Trooper Puopolo to prove that Appellant

intended that his brother communicate the threats to the trooper.

In support of this argument, Appellant cites In re L.A., where “the

listener was a teacher/counselor working with the shelter that was housing

the juvenile,” and the target of the threat was the juvenile’s caseworker.

Appellant’s Brief at 27; see also In re L.A., 853 A.2d at 390-391.

Appellant argues that “[t]he teacher/counselor … would be expected to

communicate the threat to the caseworker[,]” whereas Appellant would not

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have reason to expect that the threatening statements he transmitted to his

brother would be relayed to Trooper Puopolo.

Appellant also relies on Kelley. In that case, Kelley called an attorney

whose firm had previously represented him. Kelley, 664 A.2d at 127.

When a secretary answered the phone and asked if she could take a

message for the attorney, Kelley “made a threat to commit a crime of

violence” against the attorney and a local judge. Id. Kelley’s threat was

communicated to both the attorney and the judge, and he was ultimately

convicted of terroristic threats. On appeal, Kelley contended that his

conviction was not supported by sufficient evidence “because there was no

direct contact between himself and the victims….” Id. at 127. We rejected

this argument due to the fact that Kelley had made the threat to the

attorney’s secretary after she specifically asked to relay a message to the

attorney. Id. Appellant claims that unlike in Kelley, he had no “realistic

expectation” that that his brother would deliver his threatening text

messages to Trooper Puopolo.

While the connection between Appellant’s brother and Trooper Puopolo

may not have been as close as those discussed in In re L.A. and Kelly, we

conclude that the evidence was sufficient to prove that Appellant intended

that his brother transmit the threats to the trooper. As the trial court noted,

Appellant told his brother: “go to swiftwater. they get off at 3. give him the

heads up to go on vacation.” TCO at 13 (quoting N.T. Trial, 12/9/13, at

153). Based on this message, the trial court reasoned that,

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Appellant explicitly told his brother to communicate the message
to the intended recipient – Trooper Puopolo. Appellant’s
statements were not made between brothers with no expectation
the threats would not be communicated to the victim; Appellant
told his brother to pass the threats along and give Trooper
Puopolo the message, which he did.

Id. at 13-14. Additionally, the court noted that Appellant also told his

brother, “I want it written so when they do an investigation maybe the next

one might think harder.” Id. at 14 (quoting N.T. Trial at 152). The court

concluded that this message “further shows that Appellant did not want the

messages to stay between him and his brother. He was, in a way, trying to

send a message to the state police that bad things could possibly happen if

they interacted with him in the future.” Id. at 14.

We agree with the trial court’s interpretation of Appellant’s text

messages, and with its conclusion that those messages were sufficient to

prove, beyond a reasonable doubt, that Appellant wanted his brother to

communicate the threats to Trooper Puopolo.

Appellant additionally contends, however, that his threatening text

messages were sent in the “spur of the moment,” and that this Court has

held that “terroristic threats charges were not meant to apply” in such

circumstances. Appellant’s Brief at 29. Appellant relies on Commonwealth

v. Anneski, 525 A.2d 373 (Pa. Super. 1987). There,

this Court concluded that the jury's finding that the appellant
was guilty of making terroristic threats was contrary to the
weight of the evidence. In Anneski, there was an ongoing
dispute between the appellant and her neighbor regarding the
rural roadway the appellant's children were required to use to
walk to school. The neighbor had complained that the children

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impeded her progress when she was driving. Believing that the
neighbor's car actually struck a school bag being carried by one
of her children one morning, the appellant confronted her
neighbor and an argument ensued. The neighbor told the
appellant that if the children did not get out of her way, she
would run into them again. The appellant replied that if the
neighbor ran into her children again, she would get a gun and
use it. This Court concluded that while the evidence established
an exchange of threats made during a heated argument between
neighbors, the circumstances of the exchange suggested that
the appellant lacked a settled purpose to terrorize her neighbor.

In re J.H., 797 A.2d 260, 262-263 (Pa. Super. 2002) (citing Anneski, 525

A.2d at 376).

Even if we accept Appellant’s claim that he sent the messages to his

brother “out of anger[,]” Appellant’s Brief at 30, this Court has stated that

“[b]eing angry does not render a person incapable of forming the intent to

terrorize.” In re J.H., 797 A.2d at 263 (citing Commonwealth v. Fenton,

750 A.2d 863, 865 (Pa. Super. 2000)). Instead, “this Court must consider

the totality of the circumstances to determine whether the threat was a

result of a heated verbal exchange or confrontation.” Id.

Here, there was no heated verbal exchange or argument between

Appellant and Trooper Puopolo prior to Appellant’s threatening messages.

Trooper Puopolo testified that during the traffic stop, Appellant was

cooperative. N.T. Preliminary Hearing at 24. While the trooper also stated

that Appellant “was upset that [the trooper] had seized his marijuana,”

Trooper Puopolo testified that he believed Appellant “understood … that [the

officer] was doing what [he] had to do….” Id. at 24. At no point did

Trooper Puopolo indicate that Appellant was angry during their interaction,

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or that the two men had any heated verbal exchanges. Moreover,

Appellant’s threats were not made during his interaction with the trooper;

rather, Appellant’s text messages were sent after the traffic stop. Therefore,

the evidence does not support Appellant’s claim that the threats were made

in the ‘spur of the moment.’ See In re B.R., 732 A.2d 633 (Pa. Super.

1999) (holding that B.R.’s threat to a teacher could not be construed as

‘spur-of-the-moment’ where they were “not the product of any heated verbal

exchange or confrontation” between B.R. and the teacher, and “[t]here was

no conversation at all between [the teacher] and B.R. prior to B.R.’s

uprovoked statements”); In re J.H., 797 A.2d at 263 (concluding that J.H.’s

threats to his teacher were not ‘spur-of-the-moment’ where, prior to those

threats, “there was no heated verbal exchange or confrontation between J.H.

and his teacher”).

In sum, Appellant’s challenge to the sufficiency of the evidence to

sustain his terroristic threats conviction is meritless. Accordingly, we affirm

his judgment of sentence for that offense. However, because the trial court

erred by denying Appellant’s pretrial motion to suppress the evidence

underlying his convictions for possession of a small amount of marijuana and

possession of drug paraphernalia, we reverse Appellant’s judgment of

sentence for those crimes.

Judgment of sentence affirmed in the case docketed at 817 EDA 2014.

Judgment of sentence reversed in the case docketed at 818 EDA 2014.

Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2015

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