Commonwealth v. Speller

• Decision Date: 11 March 1983
• Citation: 311 Pa.Super. 569,458 A.2d 198
• Parties: COMMONWEALTH of Pennsylvania v. Henry SPELLER, Appellant.
• Court: Pennsylvania Superior Court

458 A.2d 198

311 Pa.Super. 569

COMMONWEALTH of Pennsylvania v. Henry SPELLER, Appellant.

Superior Court of Pennsylvania.

March 11, 1983

Submitted October 19, 1982. [Copyrighted Material Omitted]

Barry H. Denker, Philadelphia, for appellant.

Jane Cutler Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before WIEAND, BECK and MONTEMURO, JJ.

WIEAND Judge:

Henry Speller was tried in the Municipal Court of Philadelphia and convicted of making terroristic threats, a misdemeanor ^[1] and harassment, a summary offense. ^[2] He appealed to the Court of Common Pleas where, following a trial de novo, he was again found guilty of the same offenses. A sentence of imprisonment for not less than 3 months nor more than 23 months, to be followed by a consecutive three year period of probation, was imposed for terroristic threats; a one day suspended sentence was imposed for harassment. Speller has appealed. He contends that the evidence was insufficient to sustain the conviction for terroristic threats, that he was improperly tried for harassment, that prejudicial error occurred in evidentiary rulings made by the trial court and that trial counsel was ineffective.

In evaluating the sufficiency of the evidence, we employ a two step test. First, we must view the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the finder of fact could properly have based its verdict. Next, we must determine whether that evidence together with all reasonable inferences drawn from it, was sufficient to enable the trier of the facts to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Lovette, 498 Pa. 665, ---, 450 A.2d 975, 977 (1982); Commonwealth v. Goldblum, 498 Pa. 455, ---, 447 A.2d 234, 240 (1982); Commonwealth v. Waller, 498 Pa. 33, ---, 444 A.2d 653, 658 (1982); Commonwealth v. Horner, 497 Pa. 565, 568, 442 A.2d 682, 683 (1982); Commonwealth v. Hardwick, 299 Pa.Super. 362, 363, 445 A.2d 796, 796 (1982).

The crime of terroristic threats is defined in 18 Pa.C.S.A. § 2706 as follows:

A person is guilty of a misdemeanor of the first degree if he 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.

A violation of the statute is proved by evidence that (1) a threat to commit a crime of violence was made and (2) such threat was communicated with intent to terrorize. Commonwealth v. Ferrer, 283 Pa.Super. 21, 23, 423 A.2d 423, 424 (1980); Commonwealth v. Ashford, 268 Pa.Super. 225, 229, 407 A.2d 1328, 1329 (1979); Commonwealth v. Holguin, 254 Pa.Super. 295, 305, 385 A.2d 1346, 1351 (1978). "The offense does not require that the accused intend to carry out the threat; it does require an intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another's sense of personal security." Commonwealth v. Hardwick, supra 299 Pa.Super. at 365, 445 A.2d at 797. See: Model Penal Code § 211.3, revised comments (1980). See also: Commonwealth v. Green, 287 Pa.Super. 220, 429 A.2d 1180 (1981); Commonwealth v. Bunting, 284 Pa.Super. 444, 426 A.2d 130 (1981); Commonwealth v. Ashford, supra; Commonwealth v. Holguin, supra.

On the evening of October 19, 1979, appellant and several friends were gathered in front of the neighborhood store operated by Mr. and Mrs. Hugh Alan Stephen on North Sixteenth Street in the City of Philadelphia. The Stephens were then preparing dinner in their apartment, which adjoined the store. They were able to see appellant from the window of their apartment, and appellant was able to see them. Using profanity, appellant called the complainants names and shouted, "We're going to get you out of here tonight." He also yelled that he would burn their house and make a parking lot of their garage. Mrs. Stephen also heard appellant threaten in a loud voice that it would be "the last night on earth" for them and that he would blow up their house and "finish the job he started two years ago." This was a reference, the evidence showed, to an altercation on March 23, 1978, in which appellant had inflicted a serious head injury to Mr. Stephen with a blackjack. The incident had been the basis for appellant's subsequent conviction for assault and had marked the commencement of a pattern of harassing tactics by appellant. These tactics included the circulation of petitions against the Stephens, throwing bricks and bottles at them, and dragging customers from their store.

The threats made on October 19, 1979 were sufficient to sustain appellant's conviction for making terroristic threats. They included threats of physical violence to the Stephens and also a threat to destroy their property by fire. These clearly were threats to commit crimes of violence. Commonwealth v. Ferrer, supra; Commonwealth v. Sullivan, 269 Pa.Super. 279, 409 A.2d 888 (1979). That there was a settled purpose to terrorize, as distinct from a spur of the moment threat resulting from transitory anger, ^[3] was shown by the history of incidents initiated by appellant and calculated to harass and annoy the Stephens. It was unnecessary for the Commonwealth to prove that appellant intended to carry out his threats or that he had the ability to do so.

Appellant contends that it was error to allow evidence of the prior assault committed by appellant against Mr. Stephen as well as other "incidents." As a general rule, evidence of prior criminal acts by an accused is inadmissible. Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981). See: Commonwealth v. Gonzales, 297 Pa.Super. 66, 76, 443 A.2d 301, 306 (1982); Commonwealth v. Sanders, 296 Pa.Super. 376, 378, 442 A.2d 817, 818 (1982); Commonwealth v. Hawkins, 295 Pa.Super. 429, 437, 441 A.2d 1308, 1311 (1982); Commonwealth v. Krajci, 283 Pa.Super. 488, 498, 424 A.2d 914, 919 (1981). However, a long standing exception to this rule exists where the evidence of prior criminal acts is probative of a defendant's motive or intent. Commonwealth v. Styles, 494 Pa. 524, 528, 431 A.2d 978, 980 (1981); Commonwealth v. Brown, 489 Pa. 285, 296, 414 A.2d 70, 75 (1980); Commonwealth v. DeVaughn, 488 Pa. 629, 631, 413 A.2d 660, 661 (1980); Commonwealth v. Laughman, --- Pa.Super. ---, --- n. 1, 452 A.2d 548, 549 n. 1 (1982); Commonwealth v. Gonzales, supra 297 Pa.Super. at 76-77, 443 A.2d at 306; Commonwealth v. Rough, 275 Pa.Super. 50, 63, 418 A.2d 605, 612 (1980).

In the instant case, the evidence concerning appellant's prior conviction for assaulting Mr. Stephen was related closely to the crime for which appellant was being tried. Stephen had testified against appellant at the assault trial and had thereby contributed to appellant's conviction. Stephen also testified that between sentencing in January, 1979 on the assault charge and October, 1979 there had been more than one hundred "incidents" involving him and the appellant. In the trial for terroristic threats, the prior conviction and the history of related incidents were relevant to show appellant's motive and also to negative transitory anger and show an intent to terrorize. See: Commonwealth v. Faison, 437 Pa. 432, 446, 264 A.2d 394, 401 (1979); Commonwealth v. Bracero, 296 Pa.Super. 368, 372-373, 442 A.2d 813, 815 (1982). See also: Commonwealth v. Meredith, 490 Pa. 303, 308 n. 2, 416 A.2d 481, 484 n. 2 (1980); Commonwealth v. Roman, 465 Pa. 515, 523-524, 351 A.2d 214, 218 (1976); Commonwealth v. Peterson, 453 Pa. 187, 197-198, 307 A.2d 264, 269 (1973). Additionally, evidence of the prior assault was admissible to explain the full impact of appellant's threat to "finish the job" he had started two years before. Appellant's threats on October 19, 1979 were part of a series of harassing acts directed against the Stephens; and evidence of these prior acts, as they culminated in the offenses for which appellant was being tried, was clearly relevant. See: Commonwealth v. Faison, supra 437 Pa. at 446, 264 A.2d at 401. See also: Commonwealth v. Green, 290 Pa.Super. 76, 80-81, 434 A.2d 137, 139 (1981).

Appellant also contends that it was improper to permit the prosecuting attorney to cross-examine him regarding the incident of March 23, 1978 and the subsequent conviction for assault. The cross-examination pertained to advice by appellant's probation officer to stay away from the neighborhood in which the Stephens resided. The cross-examination was conducted from beginning to end without defense objection. Moreover, the propriety of the cross-examination of appellant conducted by the prosecuting attorney was not raised in post-verdict motions. Under these circumstances the propriety of appellant's cross-examination has been waived and is not properly before us for appellate review. Pa.R.A.P. 302(a); Pa.R.Crim.P. 1123. See: Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982); Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Dunston, 496 Pa. 552, 437 A.2d 1178 (1981); Commonwealth v. Butts, 495 Pa. 528, 434 A.2d 1216 (1982); Commonwealth v. Stauffer, 309 Pa.Super. 176, 454 A.2d 1140 (J. 29/82; filed December 30, 1982); Commonwealth v. Seeley, 297 Pa.Super. 498, 444 A.2d 142 (1982); Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132 (1979).

Although conceding the sufficiency of the evidence to show harassment appellant contends that this charge was not before the trial court and that his conviction thereof was improper. Harassment, being a course of conduct intended to and which does in fact alarm or seriously annoy another person and which serves no...