Com. v. Tizer

• Decision Date: 10 October 1996
• Citation: 454 Pa.Super. 1,684 A.2d 597
• Parties: COMMONWEALTH of Pennsylvania v. Jeffrey TIZER, Appellant.
• Court: Pennsylvania Superior Court

Page 597

684 A.2d 597

454 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. Jeffrey TIZER, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 19, 1996.

Filed Oct. 10, 1996.

Christine McMonagle, Assistant Public Defender, Doylestown, for appellant.

Alan M. Rubenstein, District Attorney, Doylestown, for Commonwealth, appellee.

Before CAVANAUGH, J., CERCONE, President Judge Emeritus and HESTER, J.

CERCONE, President Judge Emeritus:

This is an appeal from the judgment of sentence entered after a jury found appellant Jeffrey Tizer guilty of terroristic threats. ¹ We vacate the judgment of sentence and remand to the trial court for proceedings consistent with this opinion.

The trial court has provided us with an apt factual summary:

Murray Tizer, the victim in this case, owns a sprout farm in Bucks County. During the month of December, the [appellant], who is the victim's brother, would stop at the farm and get produce. On the date in question, the victim testified that he was in his office when the [appellant] arrived at approximately 11:00 a.m. in a highly agitated state. The [appellant] then proceeded to accuse the victim of conspiring to prevent the [appellant] from getting his trust fund. According to the victim, the [appellant] does not have a trust fund. At this point in the confrontation, the [appellant] picked up a child's toy and threw it against the wall. After throwing the toy, the [appellant] started yelling that he was going to kill the victim. As the victim walked into another room, the [appellant] stated, "I'm going to take a knife and stick it through your heart and kill you." Once in the living room, the [appellant] threatened to kill the victim again. The five minute confrontation ended when the [appellant] exited the house and drove away in his van.

Trial court opinion dated September 28, 1995 at 3.

Appellant was charged with terroristic threats, simple assault, harassment, and criminal mischief. On February 17, 1995, the court ordered Correctional Mental Health Services to ascertain appellant's competency to stand trial, current mental condition, mental condition at the time of the offense, mental health considerations in sentencing, and suitability for parole and parole planning. In a report dated April 12, 1995, appellant was found competent to proceed to trial.

On April 18, 1995, appellant made a pre-trial motion not to appear in court during trial. After conducting a colloquy to explain to appellant the consequences of waiving his right to attend his own trial, the trial court granted that motion. At the conclusion of the Commonwealth's case, appellant changed his mind and decided to attend. The jury found appellant guilty of terroristic threats and, on April 24, 1995, the trial court sentenced him to between four (4) and twenty-three (23) months incarceration plus costs. The trial court also ordered appellant to undergo a mental evaluation in sixty (60) days. By order and opinion dated September 28, 1995, the trial court denied appellant's post-sentence motions.

In this timely appeal from the judgment of sentence, appellant challenges the sufficiency of the evidence supporting his conviction for terroristic threats. He also claims that the trial court erred in deeming him competent to stand trial. In addition, appellant contends that the trial court erred by allowing him to absent himself from a portion of his trial. We shall begin by assessing the sufficiency of the evidence.

When presented with a challenge to the sufficiency of the evidence, an appellate court must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined that all the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995); Commonwealth v. Rodriquez, 449 Pa.Super. 319, 324-26, 673 A.2d 962, 965 (1996). In making this determination, we must evaluate the entire trial record and consider all the evidence actually received. Rodriquez, 449 Pa.Super. at 324-26, 673 A.2d at 965. It is within the province of the fact finder to determine the weight to be accorded each witnesses' testimony and to believe all, part, or none of the evidence introduced at trial. Commonwealth v. Molinaro, 429 Pa.Super. 29, 33, 631 A.2d 1040, 1042 (1993).

As stated, the trial court found appellant guilty of terroristic threats. A person is guilty of terroristic threats, a misdemeanor of the first degree, if he or she "threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience." 18 Pa.C.S.A. § 2706. Accordingly, 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. Kelley, 444 Pa.Super. 377, 386-87, 664 A.2d 123, 127-28 (1995), appeal denied, 544 Pa. 603, 674 A.2d 1068 (1996) (Superior Court inferred an intent to terrorize from appellant's deliberate and premeditated acts, i.e., appellant telephoned his attorney's secretary and asked her to advise the attorney that he planned to kill both him and the judge who presided over his case). Neither the ability to carry out the threat nor a belief by the persons threatened that it will be carried out is an essential element of the crime. Commonwealth v. Hudgens, 400 Pa.Super. 79, 90, 582 A.2d 1352, 1358 (1990) (quoting Commonwealth v. Anneski, 362 Pa.Super. 580, 587, 525 A.2d 373, 376 (1987), appeal denied, 516 Pa. 621, 532 A.2d 19 (1987)). 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. Id. at 91, 582 A.2d at 1358.

Appellant claims that when he announced his intent to kill the victim, he was merely making spur-of-the-moment threats while feeling angry and agitated. As such, he claims to have lacked the requisite intent. Brief of Appellant at 11, 17. We agree that section 2706 was not designed to penalize spur-of-the-moment threats that arise out of anger in the course of a dispute. Hudgens, 400 Pa.Super. at 91, 582 A.2d at 1358, 18 Pa.C.S.A. § 2706, Official Comment--1972. We cannot agree, however, with appellant's characterization of his actions as spur-of-the-moment.

This court accepted such an explanation from a mother who threatened to get a gun and use it against a victim. The victim in that case had first threatened to run over the mother's children if they did not get out of her way. Under those circumstances, the mother's statement was characterized as a spur-of-the-moment threat, made during a heated argument. Anneski, 362 Pa.Super. at 584-86, 525 A.2d at 375-76. The victim in this case, however, never threatened to do anything to appellant or to harm appellant in any way. Nor were the threats the by-product of any argument. Rather, during a five minute confrontation, appellant threatened several times to kill his brother by stabbing him through the heart with a knife. When he left the victim's house, appellant kicked the victim's car and drove into it with his van. Based on the foregoing, the fact finder court could have determined that the Commonwealth established all the elements of the crime of terroristic threats beyond a reasonable doubt. See Hudgens, supra, 400 Pa.Super. at 91, 582 A.2d at 1359 (Superior Court rejected the defendant's claim that his statement was merely a spur-of-the-moment threat; the sword wielding defendant initiated a verbal argument with the victim and threatened to "get" the victim, who had never threatened to do anything or otherwise harm the defendant).

Appellant also claims that the trial court erred by deeming him competent to stand trial. A person will be deemed incompetent if "substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense...." 50 P.S. § 7402(a). The determination of a defendant's competency to stand trial rests within the discretion of the trial judge, whose decision will not be disturbed absent a clear abuse of that discretion. Commonwealth v. Sam, 535 Pa. 350, 357, 635 A.2d 603, 606 (1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994); Commonwealth v. Banks, 513 Pa. 318, 341, 521 A.2d 1, 12 (1987), cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987).

At the time of appellant's trial and before the legislature amended the statute, Pennsylvania law required criminal defendants to establish incompetency by clear and convincing evidence. 50 P.S. § 7403(a). As appellant notes, the United States Supreme Court recently struck down an Oklahoma statute that imposed an identical burden on criminal defendants. Cooper v. Oklahoma, --- U.S. ----, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). The Cooper Court ruled that the heavy burden violated defendants' due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution. Moreover, the Court identified Pennsylvania as one of only four states requiring criminal defendants to prove incompetency by clear and convincing evidence.

In responding to an ensuing challenge to the constitutionality of former section 7403(a), this state's Supreme Court recognized that "Cooper clearly rendered section 7403(a) prior to the legislature's recent action unconstitutional." Commonwealth v. duPont, 545 Pa. 564, 567-68, 681 A.2d 1328, 1329-30 (1996). As discussed in duPont, the legislature amended the competency statute to impose a preponderance of the evidence burden on criminal defendants seeking to demonstrate...