Com. v. Moses, K.
Com. v. Moses, K. No. 1763 WDA 2015
| Pa. Super. Ct. | Jun 9, 2017Background
- Defendant Kevin Moses was charged with stalking, terroristic threats, and two counts of harassment based on a July 10, 2013 phone call to his ex-girlfriend, Mary Kay Coleman, in which the caller threatened to come to her workplace and shoot her and her mother.
- Coleman reported recognizing the caller's voice as Moses and said her caller ID displayed Moses’ phone number; she reported the call to police the next day and received subsequent voicemails she did not return.
- At a bench trial, the court dismissed some counts (stalking and harassment as to Coleman’s mother) after the Commonwealth rested; the defense presented Moses and his aunt, who testified about the prior relationship and their friendly breakup and alleged prior mistreatment of Moses by Coleman’s circle.
- The trial judge found Moses guilty of terroristic threats (18 Pa.C.S. § 2706) and harassment (18 Pa.C.S. § 2709(a)(4)) and sentenced him to concurrent probation terms and no-contact conditions; post-sentence motions were denied.
- Moses appealed, raising insufficiency challenges as to identity and intent, and arguing his conduct was de minimis under 18 Pa.C.S. § 312.
Issues
| Issue | Commonwealth's Argument | Moses' Argument | Held |
|---|---|---|---|
| 1. Sufficiency of evidence of identity | Coleman unequivocally identified Moses by voice and caller ID matched Moses’ number; circumstantial proof is sufficient | Identity not proved beyond reasonable doubt | Affirmed: voice recognition plus matching caller ID sufficed to establish identity |
| 2. Sufficiency of mens rea (intent to terrorize / to harass) | Threat to kill at workplace was serious, not a spur-of-the-moment angry remark; victim credibly terrified, so intent was proven | Words lacked requisite intent; insufficient to prove intent to terrorize or to harass | Affirmed: threat reasonably viewed as intended to terrorize and to harass/ alarm |
| 3. De minimis claim under § 312 | Conduct caused real fear and prompted police report, so not de minimis | Even if Moses made the call, the infraction was trivial under totality of circumstances | Affirmed: conduct was injurious to victim and not de minimis |
Key Cases Cited
- Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011) (recipient may identify caller by voice; circumstantial evidence can establish identity)
- Commonwealth v. DeRohn, 282 A.2d 256 (Pa. 1971) (voice identification principle)
- Commonwealth v. Carpenter, 372 A.2d 806 (Pa. 1977) (voice recognition for caller identity)
- Commonwealth v. Walls, 144 A.3d 926 (Pa. Super. 2016) (purpose of § 2706 is to punish threats that seriously impair personal security)
- Commonwealth v. Tizer, 684 A.2d 597 (Pa. Super. 1996) (context indicating threat not mere spur-of-the-moment anger)
- Commonwealth v. Miller, 689 A.2d 238 (Pa. Super. 1997) (intent to annoy/ alarm satisfied by victim’s reaction even absent physical attempt)
- Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009) (harassing conduct that could injure victim is not de minimis)
- Commonwealth v. Moses, 504 A.2d 330 (Pa. Super. 1986) (§ 312 de minimis infraction standard and limits)