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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MATTHEW FRANCIS SUNDO, : No. 2015 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, November 20, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0005101-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 22, 2016
Matthew Francis Sundo appeals from the November 20, 2015
judgment of sentence entered in the Court of Common Pleas of Allegheny
County after a jury convicted him of one count each of terroristic threats
with intent to terrorize another, simple assault, and harassment.1 The trial
court imposed an aggregate sentence of 4 to 8 months’ incarceration, with
credit for time served and immediate parole, followed by 18 months of
probation. We affirm.
The trial court set forth the following factual history:
On March 18, 2015, Anthony DiGristina, while
at work, received a phone call from his girlfriend,
Lauren Foster, informing him that their neighbor,
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2706(a)(1), 2701(a)(3), and 2709(a)(1), respectively.
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[appellant], had been continuously harassing her
that afternoon. Mr. DiGristina and Ms. Foster live in
Sharpsburg, a suburb of Pittsburgh, in a duplex in
which [appellant] lives in the other unit. The units
share a common interior wall, as well as basement
space that is divided by a wall and a wooden door.
The units also share a common porch that is
approximately twelve (12) feet long. The porch
contains a small brick wall divider that separates the
units and is approximately three (3) feet high.
Ms. Foster was at home with her fifteen (15)
month old baby and nine (9) year old child when
[appellant] began “bothering” her on the afternoon
of the incident. The bothersome and harassing
behavior was a series of almost thirty (30) phone
calls from [appellant] within a three (3) to four (4)
hour timeframe. Ms. Foster attempted to ignore
[appellant] and not respond to his calls, but then
[appellant] began to bang loudly on her basement
door. [Appellant] screamed at Ms. Foster to let him
inside of her residence as he continued to pound on
her basement door. When Ms. Foster did not open
the basement door, [appellant] moved back upstairs
and began banging on her dining room wall. At this
point, Ms. Foster called [appellant] to address his
behavior. [Appellant] told Ms. Foster to “shut the f’g
baby up” or else he would come over and kill her and
her daughter. [Appellant’s] statement terrified
Ms. Foster, prompting her to call her boyfriend,
Mr. DiGristina, as well as her neighbor, Pete Rupert.
After speaking to his girlfriend, Mr. DiGristina
left work early at approximately 3:00 p.m. that
afternoon. When he arrived home, he found
Ms. Foster to be “hysterical” and crying. After
reviewing some of the messages that his girlfriend
had received from [appellant] that day,
Mr. DiGristina called [appellant] to address the
situation, but the call quickly degenerated into an
argument. During the phone call, [appellant] was
swearing at and badmouthing Mr. DiGristina before
he asked Mr. DiGristina to come outside on the
porch. Mr. DiGristina complied with [appellant’s]
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request, exiting his home and going onto the front
porch to speak with [appellant]. He did so because,
at the time, he considered [appellant] to be a friend,
and he believed that they could resolve the matter
by having a conversation.
Very shortly after Mr. DiGristina stepped out
onto his porch, [appellant] emerged from his
residence, wearing a hospital gown and what
appeared to be a police-style tactical bulletproof
vest. [Appellant] was acting “belligerent” and
“crazy,” and he was in possession of a three (3) foot
black baton-like stick that he was wielding over his
head as if he was preparing to throw it or hit
someone with it. [Appellant] was screaming and
cursing at Mr. DiGristina, and he appeared to
Mr. Di[G]ristina to be intoxicated. Armed with the
vest and the large baton, [appellant] continued to
move closer to Mr. DiGristina’s location, standing
only a foot away from him at one point.
After lodging a barrage of insults at
Mr. DiGristina, [appellant] told Mr. DiGristina to go
“F” himself and that he was going to kill him.
[Appellant’s] threat to kill Mr. DiGristina was made
while [appellant] was holding the baton above his
head and moving toward Mr. DiGristina.
Mr. DiGristina felt scared, afraid, and intimidated
after [appellant] threatened to kill him and as he saw
[appellant] moving closer to him. Mr. DiGristina
responded to [appellant’s] threat by picking up a
wicker chair from his side of the porch and throwing
it at [appellant]. Ms. Foster and Mr. DiGristina both
saw the chair hit [appellant] in the chest.
[Appellant] retreated back into his apartment
after being struck by the chair. When he went inside
the apartment, there was no blood on his face.
However, when he reappeared in the doorway
approximately one (1) minute later, he had blood on
his face. At this time, a neighbor, Pete Rupert,
approached the duplex, observing [appellant]
standing in his doorway trying to “taunt”
Mr. DiGristina into a fight. He also saw [appellant]
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holding what he believed was a knife. Officers
arrived at the residence shortly thereafter, and
[appellant] was taken into custody. Officer Brian
Hoebel responded to the scene and observed that
Ms. Foster was “highly upset,” “agitated,” and
“crying” and that Mr. DiGristina was “very upset,”
“angry,” and emotional about the incident.
Trial court opinion, 8/11/16 at 5-9 (citations to notes of testimony omitted).
The record reflects that appellant filed timely post-sentence motions
that included a motion for judgment of acquittal and two motions to modify
sentence. The trial court denied appellant’s motion for judgment of acquittal
and his first motion to modify sentence. The trial court, however, granted
appellant’s second motion to modify sentence and modified appellant’s terms
of parole to permit him to live with a relative, as opposed to being required
to live in a halfway house. This timely appeal followed.
Appellant raises the following issue for our review:
WAS THE EVIDENCE INSUFFICIENT AS A MATTER OF
LAW TO CONVICT [APPELLANT] OF TERRORISTIC
THREATS WHERE THE COMMONWEALTH’S EVIDENCE
DEMONSTRATED ONLY THAT HE MADE MERE SPUR-
OF-THE-MOMENT THREATS WHICH RESULTED FROM
ANGER IN THE COURSE OF A DISPUTE, NOT THAT
HE INTENDED TO TERRORIZE OR ACTED WITH
RECKLESS DISREGARD FOR THE RISK OF CAUSING
TERROR?
Appellant’s brief at 5.
In reviewing a challenge to the sufficiency of the
evidence, we must determine whether, viewing the
evidence in the light most favorable to the
Commonwealth as verdict winner, together with all
reasonable inferences therefrom, the trier of fact
could have found that each and every element of the
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crimes charged was established beyond a reasonable
doubt.
Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015).
Here, a jury convicted appellant of committing terroristic threats under
18 Pa.C.S.A. § 2706(a)(1), which states that a person commits that crime “if
the person communicates, either directly or indirectly, a threat to commit
any crime of violence with intent to terrorize another[.]” The section
mandates that the Commonwealth 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.” Commonwealth v. Sinnott, 976 A.2d 1184, 1188
(Pa.Super. 2009), rev’d on other grounds, 30 A.3d 1105 (Pa. 2011).
Additionally,
[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.”
Commonwealth v. Tizer, 454 Pa.Super. 1, 684
A.2d 597, 600 (1996). “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.” In re J.H., 2002 PA Super 108, 797
A.2d 260, 262 (Pa.Super. 2002). “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.” Tizer, 684
A.2d at 600.
Commonwealth v. Beasley, 138 A.3d 39, 46 (Pa.Super. 2016).
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With respect to Lauren Foster, the record reflects that on the morning
of March 18, 2015, Ms. Foster was home with her 15-month-old daughter
when appellant, who lived in the neighboring duplex, began to repeatedly
call her, bang on her basement door while telling her to “let [him] in,” and
bang on her dining room walls. (Notes of testimony, 10/27-28/15 at 75-
76). Ms. Foster estimated that appellant called her in excess of 30 times
and banged on her basement door and dining room walls for three to four
hours when she finally telephoned him and appellant told her to “shut the f’g
baby up before he comes over and kills [Foster] and [her] baby.” (Id. at
78, 81.) This evidence demonstrated that appellant threatened to commit
murder and that the threat was communicated with the intent to terrorize
Ms. Foster or with reckless disregard for the risk of causing her to suffer
terror because he communicated his threat to kill during the three-to-four-
hour period when he repeatedly telephoned her, banged on her basement
door while directing her to let him in, and banged on her dining room walls.
Therefore, viewing this evidence in the light most favorable to the
Commonwealth and all reasonable inferences therefrom, it was sufficient to
support the jury’s factual determination that appellant committed the crime
of terroristic threats against Ms. Foster.
With respect to Anthony DiGristina, appellant contends that:
[a] careful review of the facts reveals [appellant’s]
emotions (and DiGristina’s, for that matter) were
running high, that both men were angry, and that
the threat was one which was uttered spur-of-the-
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moment and out of anger in the course of a heated,
seemingly hysterical, dispute among two neighbors,
not one legitimately meant to terrorize DiGristina.
Appellant’s brief at 17. The record, however, belies appellant’s contention.
The record reflects that appellant wielded a baton that measured
approximately 3 feet in length and 7 inches in width, while he came within
2 to 3 feet of Mr. DiGristina, and, in a “belligerent,” “crazy” manner,
threatened to kill Mr. DiGristina. (Notes of testimony, 10/27-28/15 at
82-86, 114-115.) This evidence demonstrated that appellant did not merely
engage in a heated dispute with Mr. DiGristina. To the contrary, the
evidence that appellant wielded a baton while he simultaneously threatened
to kill Mr. DiGristina established that appellant had the present ability to
complete his threats to kill Mr. DiGristina. Therefore, viewing this evidence
in the light most favorable to the Commonwealth and all reasonable
inferences therefrom, it was sufficient to support the jury’s factual
determination that appellant intended to terrorize Mr. DiGristina in violation
of 18 Pa.C.S.A. § 2706(a)(i). See Commonwealth v. Hudgens, 582 A.2d
1352, 1358 (Pa.Super. 1990) (holding evidence sufficient to support intent
to terrorize when defendant threatened to “stick the victim with the sword”
that defendant simultaneously held in his hand).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2016
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