In the Int. of: E.L.W., a Minor
2022 Pa. Super. 67
| Pa. Super. Ct. | 2022Background
- On June 2, 2020, a juvenile posted on Facebook: “We looting Walmart in Wilkes-Barre, PA tomorrow at 8 p.m. in all black, or just me?”
- Police investigated amid nationwide looting reports; juvenile probation officer interviewed the appellant, who apologized and said she was joking and never intended to loot.
- The juvenile court adjudicated the appellant delinquent under 18 Pa.C.S. § 2706(a)(3) (terroristic threats by reckless disregard of risk) and imposed continuation of probation, community service, and costs.
- The juvenile court found the post had serious effects on businesses and law enforcement but also expressly found the appellant did not understand the post’s effects prior to posting.
- On appeal, the Superior Court held that recklessness under § 2706(a)(3) requires subjective awareness of a substantial and unjustifiable risk and a conscious decision to disregard it; the juvenile court conflated effects on listeners with the appellant’s mens rea.
- Because the record contained findings supporting only negligence (not conscious disregard), the Superior Court vacated the adjudication and dispositional order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency under § 2706(a)(3) | E.L.W.: Commonwealth did not prove she acted with reckless disregard (insufficient evidence of subjective awareness). | Commonwealth: Context (nationwide looting) implies she knew the risk and knowingly disregarded it. | Vacated: Evidence insufficient to prove subjective recklessness; adjudication cannot stand. |
| Mens rea requirement (recklessness) | E.L.W.: Juvenile court misapplied recklessness by focusing on effect on listeners rather than actor’s conscious awareness before posting. | Commonwealth: The contextual backdrop shows the appellant should have understood the risk. | Held for E.L.W.: Recklessness requires subjective awareness and conscious disregard; juvenile court misapprehended standard and effectively found only negligence. |
| First Amendment challenge to § 2706(a)(3) | E.L.W.: Statute violates free speech by criminalizing her Facebook post. | Commonwealth: Statute is constitutional; punishes threats made in reckless disregard of risk. | Not decided on merits (disposition dispositive); court noted J.J.M. supports constitutionality but did not reach appellant’s claim. |
Key Cases Cited
- Interest of J.J.M., 265 A.3d 246 (Pa. 2021) (holding § 2706(a)(3) requires proof of conscious disregard of a substantial risk; mere listener reaction is insufficient)
- Commonwealth v. Kline, 201 A.3d 1288 (Pa. Super. 2019) (explaining purpose of terroristic threats statute is to address threats that seriously impair personal security or public convenience)
- Commonwealth v. Sitler, 144 A.3d 156 (Pa. Super. 2016) (en banc) (explaining recklessness implicates subjective knowledge and that the risk is measured by circumstances known to actor)
- Commonwealth v. Sanders, 259 A.3d 524 (Pa. Super. 2021) (en banc) (reversing where record lacked evidence appellant was consciously aware of a substantial risk)
- Commonwealth v. Vogelsong, 90 A.3d 717 (Pa. Super. 2014) (treating recklessness as closer to knowing; prior facts can show conscious disregard)
- Commonwealth v. Gilliland, 422 A.2d 206 (Pa. Super. 1980) (reversing convictions where there was no conscious realization of a substantial risk)
- Commonwealth v. Cheatham, 615 A.2d 802 (Pa. Super. 1992) (affirming recklessness where defendant knowingly acted despite high risk, demonstrating conscious disregard)