Com. v. Hookey, M.

J-S66009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MEGAN BLAIR HOOKEY,

Appellant No. 1815 WDA 2016

Appeal from the PCRA Order Entered November 9, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000404-2011

BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 05, 2018

Appellant, Megan Blair Hookey, appeals from the post-conviction

court’s order denying her first petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.§§ 9541-9546. After careful review, we vacate the PCRA

court’s order, reverse Appellant’s convictions for five counts of terroristic

threats, vacate her judgment of sentence, and remand for resentencing.

On January 30, 2012, Appellant was convicted, following a non-jury

trial, of six counts of terroristic threats, 18 Pa.C.S. § 2706(a)(1). The facts

underlying her convictions were summarized by this Court on direct appeal,

as follows:

On August 3, 2010, [A]ppellant’s mother, Bonnie Robson
(“Robson”), received a telephone call via calling card from
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* Retired Senior Judge assigned to the Superior Court.
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[A]ppellant who was an inmate at the Allegheny County Jail.
(Notes of testimony, 1/30/12 at 12.) Robson testified that the
subject of the call was an ongoing dispute concerning
[A]ppellant’s three-year-old son. (Id. at 12, 16.) The child was
living with his father who resides with his parents and another
relative. Robson testified that [A]ppellant “just blows up at me
every time . . . she brings up the subject because I don’t take
[the child] in to see her . . . .” (Id. at 12-13.) Robson did not
believe it was in the child’s best interest to visit [A]ppellant in
jail. (Id.)

On this particular occasion, when [A]ppellant realized she
was not going to be able to see her son, she became very angry
and began making threats. Specifically, [A]ppellant threatened
to burn down the house where her child’s father and paternal
grandparents resided. Robson testified [A]ppellant stated that
“[s]he would kill the little bastard, meaning [her son], because if
she couldn’t have him, nobody could.” (Id. at 14.) Appellant
also threatened to kill the child’s aunt who was also living at this
residence. (Id. at 14-15.)1 When Robson pleaded with
[A]ppellant to stop making such threats, [A]ppellant ignored her
and responded by threatening to kill Robson too. (Id.) Robson
was unaware of [A]ppellant’s release date and, fearful of her
safety, reported the incident. (Id. at 16.) “I was scared. It --
scared [me] enough to report it. [I was] [s]cared for our lives
and the people that she threatened.” (Id. at 14.)
1 At trial, Robson testified that the voice on the audiotaped
recording belonged to her daughter. (Id. at 13)

As is standard procedure in the jail, the call was recorded
and a copy was subsequently given to the District Attorney’s
Office. Allegheny County Detective Michael Opferman testified
at trial as he was assigned to jail investigations. As a part of his
duties, he monitors audio recordings made of
telephone calls from the Allegheny County Jail when necessary.
(Id. at 20-21.) He explained that the calls made from the
Allegheny County Jail are recorded on a system using PIN
numbers that are unique to each inmate. Detective Opferman
testified that a call dated August 3, 2010, was made using
[A]ppellant’s PIN number. (Id. at 19-20, 22-23.) The profanity-
laden telephone recording was played for the trial court to hear.
The recorded conversation also indicated that [A]ppellant was
angered by the fact that her telephone calls to the Joneses were

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being restricted as well as Robson’s refusal to bring the child to
visit her in jail.

Appellant testified on her own behalf and denied making
the threatening telephone call on August 3rd; she claimed that
the recording in question was fabricated by an employee in the
jail. (Id. at 36, 39.) Appellant testified that she had a
contentious relationship with her mother and claimed her mother
had stolen her money. Appellant also stated that she had
become angry with her mother during a visit to the jail in mid-
July as her mother did not give her money allegedly owed to her
from the sale of a camper. Appellant claimed that this was the
last time she spoke to her mother until August 6, 2010.

At the close of trial, [A]ppellant was found guilty of all
counts. Immediately thereafter, [A]ppellant was sentenced at
the first count to time served and a five-year probationary term
at the second count. No further penalty was imposed at the
remaining counts.

Commonwealth v. Hookey, No. 369 WDA 2012, unpublished

memorandum at 1-3 (Pa. Super. filed Nov. 7, 2013).

Appellant filed a timely direct appeal, and this Court affirmed. See

Hookey, supra. She did not file a petition for allowance of appeal with our

Supreme Court.

In January of 2014, Appellant violated the conditions of her probation,

and a probation violation hearing was conducted on January 15, 2014. At

the conclusion thereof, the court revoked Appellant’s probation and

sentenced her to a term of 2½ to 5 years’ incarceration. Appellant

thereafter filed a timely, pro se notice of appeal, and her attorney also

subsequently filed an amended notice of appeal. However, on October 15,

2014, Appellant filed with this Court a pro se “Motion to Withdraw Appeal,”

which we granted by per curiam order on October 27, 2014.

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On November 12, 2014, Appellant filed the pro se PCRA petition

underlying the present appeal. Counsel was appointed, and he filed an

amended petition on Appellant’s behalf. Additionally, counsel filed a motion

for the PCRA court to recuse from Appellant’s case. On October 11, 2016,

the PCRA court issued an order denying Appellant’s recusal motion. That

same day, the court also issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss her petition without a hearing, along with an accompanying opinion.

Appellant did not respond to the court’s Rule 907 notice, and on November

9, 2016, the court issued an order dismissing her petition.

Appellant filed a timely notice of appeal, and she also timely complied

with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. On April 24, 2017, this Court received the

PCRA court’s Rule 1925(a) opinion. We now review the following issues

Appellant raises on appeal, which we have reordered for ease of disposition:

I. Whether the [PCRA judge] erred in failing to recuse himself
based on bias and ex parte contacts with witnesses
thereby becoming a witness in the process?

II. Whether the [PCRA] court erred in not granting PCRA relief
based on an invalid jury trial waiver?

III. Whether the [PCRA] court erred in not granting PCRA relief
where evidence of prior bad acts was introduced and
counsel was ineffective for failing to object?

IV. Whether the [PCRA] court erred in not granting PCRA relief
where counsel failed to argue at trial and thereafter raise
the insufficiency of evidence on appeal where no threats
were communicated to the alleged victims?

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V. Whether Appellant’s sentence was illegal because all
counts stemming from one phone call (one act) should
have merged for sentencing purposes?

VI. Whether the [PCRA] court erred in not granting PCRA relief
to correct an illegal sentence which was entered without
notice and opportunity to be heard on the time credit
issues?

Appellant’s Brief at 1.

Our standard of review regarding an order denying post-conviction

relief under the PCRA is whether the determination of the court is supported

by the evidence of record and is free of legal error. Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference

to the findings of the PCRA court, and we will not disturb those findings

merely because the record could support a contrary holding.

Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).1
____________________________________________

1 We recognize that Appellant raises issues stemming from both her original
conviction and direct appeal, as well as claims that her current, post-
revocation-of-probation sentence is illegal. We conclude that all of
Appellant’s claims are timely under the one-year timeliness requirement of
the PCRA. See 42 Pa.C.S. § 9545(b). This Court has explained that:

Probation revocation does not materially alter the underlying
conviction such that the period available for collateral review
must be restarted. The Legislature did, however, by its
enactment of 42 Pa.C.S.[] § 9543(a)(2)(vii), intend to provide
collateral review to probation revocation issues. As such, we
find that probation revocation presents a special situation insofar
as determining timeliness under § 9545. We hold that where a
new sentence is imposed at a probation revocation hearing, the
revocation hearing date must be employed when assessing
finality under § 9545(b)(3) to any issues directly appealable
from that hearing. To hold otherwise would frustrate the
purpose behind the PCRA.
(Footnote Continued Next Page)

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In Appellant’s first issue, she avers that the PCRA judge (who also

presided over her non-jury trial and revocation/resentencing hearing) erred

by denying several motions for recusal that she filed during the litigation of

her case.2 In arguing that the court should have granted these motions,

Appellant explains:

The court below was biased and prejudiced against []
Appellant as evidenced by his comments during the proceedings.
For instance, the judge called Appellant a “pathological liar” at
the probation violation hearing. (N.T., 1/15/14, p. 11). Since
there is no scientific basis for the [c]ourt’s comment, it reflects a
bias against Appellant. See Commonwealth v. Williams, 69
A.3d 735 (Pa. Super. 2013); Commonwealth v. Culver, 51
A.3d 866, 878-79 (Pa. Super. 2012). The lower court’s bias
influenced its decision to find that Appellant committed a
probation violation (which was not based on a conviction) and
led to the imposition of the maximum sentence.

(Footnote Continued) _______________________

Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa. Super. 2001).

Here, Appellant’s original judgment of sentence became final on
December 7, 2013, at the expiration of the thirty-day time-period for
seeking review with the Pennsylvania Supreme Court. See 42 Pa.C.S. §
9545(b)(3) (judgment of sentence becomes final at the conclusion of direct
review or the expiration of the time for seeking the review); Pa.R.A.P.
1113(a) (“a petition for allowance of appeal shall be filed with the
Prothonotary of the Supreme Court within 30 days of the entry of the order
of the Superior Court sought to be reviewed”). Accordingly, she had until
December 7, 2014, to file a timely PCRA petition raising issues pertaining to
her original judgment of sentence, making her current petition filed on
November 12, 2014 timely. Additionally, Appellant’s claims challenging her
post-revocation sentence imposed on January 15, 2014, are also timely
under the PCRA.
2 Appellant filed motions for the judge to recuse both before her probation
revocation/resentencing hearing, and after filing her present PCRA petition.

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Also, the lower court admittedly received ex parte
communications from the Commonwealth witnesses. At the
probation review hearing on March 22, 2013, the [c]ourt stated,
“[w]e have gotten calls that [Appellant] is calling the people who
have custody of her child.” (N.T., 3/22/13, at 3). The lower court
further indicated that he had spoken to the [alleged] victims
personally: “Well, why would they call here and say that you are
threatening them.” (N.T., 3/22/13, at 5). During this hearing,
the lower court indicated that he was going to believe everything
the alleged victims say and “err on the side of caution,” at the
expense of violating Appellant’s constitutional rights. The lower
court stated: “What do I do in this situation? Do I believe her
and make a type two error or do I make a type one error and
perhaps violate some of her rights?” (N.T., 3/22/13, at 8-9).

Appellant’s Brief at 8.

Appellant maintains that these comments by the court “reflect a bias

against Appellant and an unalterable belief in the truth of out-of-court

statements made by the alleged victims to the court.” Id. She also

maintains that “by having these ex parte communications with witnesses,

the lower court made [itself] a witness in the proceedings” by having a

“personal knowledge of disputed facts….” Id. at 9. Appellant concludes by

stating that, based on the court’s alleged bias, “the denial of her PCRA

petition should be reversed and the case should be remanded to a different

judge for a new trial, re-sentencing, or a fair disposition of her PCRA claims.”

Id. at 10.

Preliminarily, we conclude that Appellant has waived her contention

that the court exhibited a bias against her that tainted her trial, initial

sentencing proceeding, or her probation revocation/resentencing hearing in

January of 2014. To be eligible for PCRA relief, the petitioner must

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demonstrate “[t]hat the allegation of error has not been previously litigated

or waived.” 42 Pa.C.S. § 9543(a)(3). The PCRA further states that “an issue

is waived if the petitioner could have raised it but failed to do so before trial,

at trial, during unitary review, on appeal or in a prior state post[-]conviction

proceeding.” 42 Pa.C.S. § 9544(b). Here, Appellant did not raise, in her

initial direct appeal, that the court should have recused from her trial or

sentencing in January of 2012. Additionally, while she now claims that the

court’s bias against her impacted its impartiality at her revocation of

probation/resentencing hearing in January of 2014, she withdrew her direct

appeal following that proceeding, thus waiving those claims on collateral

review.

Moreover, Appellant offers no discussion of how the court’s remarks at

the probation review hearing in March of 2013, and the probation

revocation/resentencing hearing in January of 2014, demonstrate that the

court was unable to preside impartially over her current PCRA claims. In

any event, having carefully reviewed the record, we find no merit to such a

claim. The standard for recusal is well-settled:

It is the burden of the party requesting recusal to produce
evidence establishing bias, prejudice or unfairness which
raises a substantial doubt as to the jurist's ability to
preside impartially. As a general rule, a motion for recusal
is initially directed to and decided by the jurist whose
impartiality is being challenged. In considering a recusal
request, the jurist must first make a conscientious
determination of his or her ability to assess the case in an
impartial manner.... The jurist must then consider whether
his or her continued involvement in the case creates an

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appearance of impropriety and/or would tend to undermine
public confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make. Where
a jurist rules that he or she can hear and dispose of a case
fairly and without prejudice, that decision will not be
overturned on appeal but for an abuse of discretion.

Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89
(1998) (citations omitted). Furthermore, “[a]ny tribunal
permitted to try cases and controversies must not only be
unbiased but must avoid even the appearance of bias.” In the
Interest of McFall, 533 Pa. 24, 617 A.2d 707, 713 (1992).
“There is no need to find actual prejudice, but rather, the
appearance of prejudice is sufficient to warrant the grant of new
proceedings.” Id., at 714.

Commonwealth v. White, 910 A.2d 648, 657 (Pa. 2006).

In the present case, we first conclude that the trial court’s remarks at

the March 22, 2013 probation review hearing do not demonstrate that the

court engaged in what Appellant categorizes as ‘ex parte communications.’

The judge did not state that he, himself, had spoken to the individuals

involved in this case. As the judge now explains in his Rule 1925(a) opinion,

[w]hen the phrase ‘the [c]ourt’ is used[,] it does not mean me,
[the judge,] personally did something. Contrary to [Appellant’s]
assertion, … I did not personally speak to any witness. My staff
was the intermediary who received the call and engaged in the
conversation and then relayed the contents to me.

PCRA Court Opinion (PCO), 4/24/17, at 3 n.3. Because the record supports

the court’s statement of what communications occurred in this case, we

reject Appellant’s contention that the court had ‘ex parte communications’

with the victims in this case that warranted recusal.

Additionally, we disagree that the court’s isolated reference to

Appellant as a ‘pathological liar’ required the court’s recusal. As the judge

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explains in his opinion, his use of this phrase did not equate with a mental

health diagnosis:

The phrase [‘pathological liar’] stems from a probation violation
proceeding on January 15, 2014. After hearing from [three]
government endorsed witnesses, the [c]ourt solicited the views
of the probation agent and [Appellant’s] lawyer as to
punishment. The agent suggested her probation be revoked and
a new sentence of jail be imposed. [Appellant’s] lawyer
highlighted her current mental health issues. The [c]ourt then
asked defense counsel about “her being a pathological liar who’s
been resistant to every effort anyone’s made to help her?” The
[c]ourt’s use of the phrase – on one occasion – was not the
adoption of a medical backed conclusion [that] was presented
through evidence. The [c]ourt’s use was more akin to lay
opinion based upon the [c]ourt’s numerous interactions with
[Appellant] and learning all the nuances of the case and, most
importantly, the person. That long running interaction with
[Appellant] is a major distinction with her reference to
Commonwealth v. Williams, 69 A.3d 735 (Pa. Super. 2012).
The [c]ourt has gotten to know [Appellant] quite well and simply
does not hold her ability to tell the truth in high regard. That
belief does not equate with a demonstration of bias which would
require recusal.

PCO at 4. We ascertain no abuse of discretion in the court’s decision. While

the judge’s use of the term ‘pathological liar’ may have been rash, his

explanation for using that phrase demonstrates that he was not rendering a

mental health diagnosis.

Moreover, we agree with the court that the circumstances in Williams

are easily distinguishable from the present case. There, we rejected the

appellant’s argument that the judge erred by not recusing himself, where

the comments by the judge on which the appellant relied were made after

the trial court had denied her recusal motion. Williams, 69 A.3d at 749. In

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any event, we did find that the court’s remarks at sentencing indicated a

“strong appearance of bias and partiality” such that the appellant’s sentence

must be vacated. Id. Namely, the trial court in Williams had “insisted on

repeatedly describing [the] [a]ppellant as a ‘pathological liar[,]’” and it had

also referred to the appellant as a “classic sociopath” in its subsequent

opinion. Id. at 748. While we concluded that these remarks signaled a bias

against the appellant, we stressed that it was an “accumulation of

inappropriate remarks” by the court that demonstrated an appearance of

bias. Id. at 744. For instance, the court had commented that a prior judge

involved in the case “had been unduly lenient with [the] [a]ppellant,” id. at

745, it had placed “repeated emphasis on the fact that the victims of [the]

[a]ppellant’s crimes were agencies of the Catholic Church,” id., and it had

made other remarks suggesting “the appearance of bias against [the]

[a]ppellant based on her gender,” id. at 748. Again, it was the totality of

these remarks by the court in Williams, in addition to its repeatedly

referring to the appellant as a ‘pathological liar,’ that demonstrated the court

was biased and impartial. Thus, the court’s one, isolated reference to

Appellant as a ‘pathological liar’ in the present case is obviously

distinguishable from the circumstances in Williams. Therefore, we

ascertain no abuse of discretion in the court’s denial of Appellant’s motion to

recuse from the PCRA proceedings.

In Appellant’s second issue, she claims that her trial counsel, Elana

Kornblit, Esq., acted ineffectively by coercing her to waive her right to a jury

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trial. Where, as here, a petitioner claims that she received ineffective

assistance of counsel, our Supreme Court has directed that the following

standards apply:

[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See [Commonwealth
v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
prove any of these prongs, his claim fails.” Commonwealth v.
Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
omitted). Generally, counsel's assistance is deemed
constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate
his client's interests. See Ali, supra. Where matters of strategy
and tactics are concerned, “[a] finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.”
Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable

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probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

According to Appellant, Attorney Kornblit acted ineffectively by

“insist[ing] that if Appellant asserted her right to a jury trial and was found

guilty, she would get 2½ to 5 years … of incarceration on each count to run

consecutively. Hence, counsel’s statements that Appellant would receive the

maximum sentence under the law if she exercised her right to a jury trial,

coerced her to waive her right to a jury trial.” Appellant’s Brief at 10.

The record of Appellant’s waiver colloquy belies her claim of coercion.

Notably, Appellant confirmed during the colloquy that no one promised her

anything, threatened her, or coerced her to waive her right to a jury trial.

N.T. Trial, 1/30/12, at 5. Appellant also stated that she understood the

difference between a non-jury and a jury trial, she had consulted with her

counsel about her decision, she had no questions for the court, and she was

knowingly, voluntarily, and intelligently deciding to waive her right to a jury

trial. Id. at 5-6.

Additionally, Appellant completed a written waiver colloquy. Id. at 6.

When questioning Appellant about that form, the court commented on the

fact that she left blank the question of whether she was “completely satisfied

with the legal representation or advice of [her] attorney[.]” Id. In

explaining why she did not complete that portion of the form, Appellant

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made no mention of her current claim that counsel coerced her by

threatening that she would receive the maximum sentence if she proceeded

to a jury trial. Instead, Appellant complained about counsel’s purported lack

of communication and preparation for her trial, stating:

[Appellant]: I didn’t fill that in. I just wanted to have it placed
on the record, like, these charges are from, like 18 months ago,
and I never spoke to a Public Defender or met with anybody until
about two weeks ago [when] Ms. Kornblit started showing up.

So had I been able to meet with somebody, speak to
somebody assigned to my case, there were definite issues at
hand for this trial. Things could have been dismissed, things
could have been suppressed. They [sic] were major issues. And
I didn’t have the opportunity. Now she’s saying that’s too late to
do.

Id. at 7.

Because Appellant never provided any indication, during her written or

oral colloquies, that Attorney Kornblit had guaranteed her that she would

receive a maximum sentence if she was tried by a jury, the record supports

the PCRA court’s decision to reject her claim that counsel ineffectively

coerced her into waiving her right to a jury trial. Additionally, while

Appellant cursorily claims that Attorney Kornblit’s “lack of preparation, and

[] Appellant’s timely objection to the [c]ourt, rendered [her] waiver of [her

right to a] jury trial invalid[,]” she does not offer any developed discussion

of this assertion. Appellant’s Brief at 10. Thus, she has failed to prove that

counsel acted ineffectively, or that that alleged ineffectiveness resulted in an

invalid waiver of her right to a jury trial.

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In Appellant’s next claim, she argues that Attorney Kornblit was

ineffective for failing to object to the admission of “prejudicial evidence from

Bonnie Robson concerning prior bad acts of Appellant….” Appellant’s Brief at

12. Specifically, Appellant maintains that counsel should have objected to

Robson’s testimony that Appellant “just blows up at [Robson] every time”

the two discuss Robson’s bringing Appellant’s son to visit Appellant in jail.

N.T. Trial at 12-13. According to Appellant, “there was no need for the

Commonwealth to elicit this testimony in pursuit of its conviction[,]” and

“the evidence made Appellant look guilty because of her mother’s blanket

accusation.” Appellant’s Brief at 13.

Appellant’s brief argument is insufficient to convince us that she was

prejudiced by Attorney Kornblit’s failure to object to Robson’s vague and

isolated remark. From our review of the record, Appellant herself testified

that she had a strained and volatile relationship with her mother prior to the

at-issue telephone call wherein Appellant threatened Robson. For instance,

Appellant testified that she and Robson had “a terrible relationship[,]” N.T.

Trial at 30; one visit between she and Robson “blew up[,]” with Appellant’s

angrily “cussing” at Robson, and telling Robson she “was going to put her

ass in jail[,]” id. at 31; Appellant has “been fighting” for her son and Robson

is “the ringleader” in that custody battle, id. at 33; Robson has “hated”

Appellant “from the time [Appellant] was little[,]” id. at 34; and Appellant

and Robson have a bad relationship, and Appellant has had “angry

outbursts” at Robson because she is “very hurt” by Robson, id. at 34, 35.

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Given Appellant’s testimony - which painted a picture of an explosive

relationship between Appellant and Robson that included angry outbursts by

Appellant toward Robson - we cannot conclude that the trial court’s verdict

was impacted by Robson’s cumulative testimony that Appellant ‘blows up’ at

Robson every time they speak about Appellant’s son. Therefore, Appellant

has failed to demonstrate that Attorney Kornblit was ineffective for not

objecting to Robson’s remark in this regard.

In Appellant’s fourth issue for our review, she asserts that Attorney

Kornblit, and Appellant’s direct appeal counsel, were ineffective for failing to

challenge the sufficiency of the evidence to sustain five of her six convictions

for terroristic threats.3 Specifically, Appellant claims that trial and appellate

counsel should have asserted that the evidence was insufficient to prove that

Appellant’s “threats were communicated, even indirectly, to five of the

purported victims, including the minor child.” Appellant’s Brief at 11.

By way of background, direct appeal counsel did raise a sufficiency

challenge, but counsel only argued that the evidence failed to demonstrate

Appellant’s “actual intent to terrorize or reckless disregard for causing

terror…[.]” Hookey, No. 369 WDA 2012, unpublished memorandum at 4.

____________________________________________

3 It is unclear if Attorney Kornblit represented Appellant both at trial and on
direct appeal. We will presume that Appellant had a different attorney on
appeal.

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This Court found that sufficiency claim meritless, but in a concurring

statement, The Honorable Gene Strassburger declared:

There is a question of whether Appellant’s threats were
communicated, even indirectly, to five of the purported victims,
including the minor child. However, neither party has raised this
issue. Accordingly, I join the Majority Memorandum.

Hookey, No. 369 WDA 2012, concurring statement by J., Strassburger.

Appellant now relies on Judge Strassburger’s concurring statement as

evidence that her appellate counsel acted ineffectively by not arguing that

Appellant’s threats were not communicated to five of the six victims. In

response, the Commonwealth asserts that such a claim would not have been

meritorious, despite Judge Strassburger’s suggestion otherwise. The

Commonwealth relies on two cases, Commonwealth v. Kelley, 664 A.2d

123 (Pa. Super. 1995), and Commonwealth v. Campbell, 625 A.2d 1215

(Pa. Super. 1993). In Kelley, the defendant called a law firm and told the

secretary who answered the phone that he was going to kill a certain

attorney at the firm, as well as a specific judge. Kelley, 664 A.2d at 125.

The secretary then conveyed those threats to both victims. Id. at 127. In

Campbell, the defendant told a cashier at a store to “give a message” to

another cashier, and then made a threatening gesture and remark.

Campbell, 625 A.2d at 1218. The cashier who was the target of the threat

was ultimately told of it, and she “appeared to be frightened.” Id.

In both Kelley and Campbell, the threat made by the defendant was

actually conveyed to the victim(s). To the contrary, here, there was no

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evidence presented that Appellant’s threats were ever communicated to any

victim but her mother, Robson. The Crimes Code provides, in relevant part,

that “[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)

(emphasis added). Thus,

[f]or a defendant to be convicted of terroristic threats,

the Commonwealth must prove that 1) the defendant
made a threat to commit a crime of violence, and 2) the
threat was communicated with the intent to terrorize
another or with reckless disregard for the risk of causing
terror. Neither the ability to carry out the threat, nor a
belief by the person threatened that the threat will be
carried out, is an element of the offense. 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.

Commonwealth v. Beasley, 138 A.3d 39, 46 (Pa. Super. 2016) (emphasis

added) (quoting Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.

Super. 2003) (internal quotations and citations omitted)).

We recognize that “[t]erroristic threats do not have to be

communicated directly.” Beasley, 138 A.3d at 47 (citing Kelley, 664 A.2d

at 127). However, this Court has also declared that, “based on the statute's

plain meaning, our strict construction of it, and the legislature’s stated

purpose in enacting it, we conclude that the term, ‘communicates,’ as used

in the terroristic threats statute, contemplates that the threat be received.”

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Id. (quoting Commonwealth v. Vergilio, 103 A.3d 831, 833-34 (Pa.

Super. 2014), appeal denied, 114 A.3d 416 (Pa. 2015)).

In the present case, unlike in Kelley and Campbell, there was no

evidence that Appellant’s threats were communicated – either directly or

indirectly - to any victim but Robson. Thus, we agree with Appellant that

the evidence was insufficient to sustain her convictions for terroristic threats

regarding the five victims other than Robson. Appellant’s trial and appellate

attorneys were ineffective for failing to present this claim before the trial

court, or to this Court on direct appeal. Consequently, we reverse

Appellant’s convictions for terroristic threats pertaining to Aaron Jones, Paul

Jones, Mary Jones, Ericka Jones, and P.H.4 Appellant’s conviction of

terroristic threats pertaining to Robson remains in place. Because it is not

clear from the record for which victim Appellant’s current sentence of

incarceration was imposed, we vacate her judgment of sentence and remand

for resentencing.5

Order vacated. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judge Dubow files a concurring statement.

____________________________________________

4 We use the minor victim’s initials for confidentiality purposes.

5 Because of our decision to vacate Appellant’s judgment of sentence, we
need not address her remaining two claims challenging the legality of her
current sentence.

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Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/5/2018

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