*3 VOORT, SPAETH, JJ. and VAN der Before BROSKY VOORT, Judge: VAN der of jury a of four counts guilty by was found
Appellant (18 2706). Threats Pa.C.S. § Terroristic arguments appeal. on this He raises three is that the statute is “un- argument first Appellant’s vague.” constitutionally is follows: of the section as language degree a misdemeanor of the first guilty
“A is of person crime of violence with any if he threatens to commit of a another or to cause evacuation intent to terrorize transpor- assembly, facility public or building, place inconvenience, tation, public otherwise to cause serious or such terror disregard causing of the risk of or in reckless or inconvenience.” a criminal statute must argument give is that
Appellant’s intelligence that his person ordinary notice to a fair statute: U. by conduct is forbidden S. contemplated
447 Hams, 612, 617, (1954); 98 U.S. S.Ct. L.Ed. 989 this has been statute declared unconstitutional Judge Philadelphia of the Court of Chalfin Common Pleas Howell, (1976); Commonwealth v. 1 Pa. D. & C. 3d and question the constitutional has not heretofore been raised at the level appellate although convictions under the statute have sustained1 been without discussion of the con question. stitutional judge rejected
The trial the appellant’s argument case, below and held that on the facts developed in this “the direct, section is sufficiently precise and informative comply requirements.” with constitutional Citing Common Heinbaugh, wealth v. 467 Pa. (1976); A.2d 244 and Hughes, Commonwealth v. agree. present
We In this case the applicable words of the statute are: “. . . if he threatens to commit crime of any violence with intent to terrorize another ...” alleged
Here the threats were made to township officials neighbors. and to was Specifically, alleged to have threatened:
1) to bomb the house of the chairman of the township board of supervisors;
2) that it would not be for a if healthy neighbor caught he field; neighbor such he get would the neighbor and son; 3) a zoning officer that he was going get gun and go officer; after zoning
4) “to arrange legal accident to wipe neighbor’s out” a mother.
These threats seem to us to come within the language of the statute and the gives that statute reasonably notice to a person average of that intelligence such threats are pro- scribed the statute. Willie, Pa.Super.
1. Commonwealth v.
(1977);
“Evidence threats has been none of them stat- presented. Although terror,’ ed that he was ‘in there is of fear of testimony consequences. Terror has been defined as intense fear. may The witnesses not have articulated the intensity their The the intensity fear. determination of and wheth- magnitude er the fear was of the of terror was expressed for the jury.” error in the admission of reversible Appellant argues
III. silence after arrest. appellant’s evidence of from conversations be- in this case resulted charges trooper A state testified and the victims. appellant tween arrest, under placed had been that after the appellant proceeded Miranda given rights, had been read the written trooper The state an oral statement. give record, concluding with: into the account of the statement is the extent of the statement. “That I asked him about his conversations with Book—I am Zooks; however, nothing with the there was said sorry, to those conversations.” N.T. at pertaining motion for a mistrial. made a trial counsel Appellant’s a review of the on the record and discussion After a brief The district attor- denied the motion. the court his direct examination. continued ney
449 ATTORNEY: DISTRICT Harnish, conver- any subsequent was there
“Q. Corporal to this matter? Bunting with Mr. relative sations A. Nothing significance.
Q. Thank you. DISTRICT ATTORNEY: I have no further questions. Honor, DEFENSE ATTORNEY: Your I have to renew the same motions again. all over THE COURT: They are denied.” N.T. at 134-135.
Appellant now claims that under Commonwealth v. Williams, 252 Pa.Super. 381 (1977), A.2d 1285 the admis sion of “evidence of a defendant’s silence at the time of arrest is not, reversible error.” however, Such a reference is justification automatic for a new trial. Commonwealth v. Maloney, Pa. (1976); A.2d 1237 and Common Quartman, wealth v. Pa.Super.
To reach appellant’s conclusion we proceed must through a three tier examination. First the reference must have been improper. Next, if the improper, reference was this court must find that a curative instruction would not negat have ed the inference left such reference. Finally, if an instruction could have remedied the harm but was not given, we must find that the lower court and trial counsel could not have reasonably concluded that an instruction would rein force the guilt inference of in the minds of jurors.
Reading text of the state trooper’s we testimony, observe no improper reference to appellant’s partial silence. police state testified appellant made a statement concerning two of the charges. Such statement by itself indicates that he did not converse concerning the other two counts. Every statement must end at point; some here appellant terminated his statement after giving his version of two of the four conversations. We can find no additional harm resulting from the testimony only dis cussed the two counts of terroristic threats. Appellant would have detriment, suffered the same if any, had the trooper with, concluded his was the extent “[t]hat where a a situation Williams involved the statement.” version of given had suspect that a officer testified
police
then elected
a stolen car. He
possession
he came
how
*6
White, 482 Pa.
v.
In Commonwealth
remain silent.
to
statement,
giving
after
a
(1978),the defendant
A.2d 447
not
and was
enough
hurt himself
already
he had
said that
Single-
v.
in Commonwealth
While
say anymore.
to
going
indi-
(1978)
testimony
the
610,
Even preju any possible have remedied instruction would curative the announcing Eagen’s opinion Justice appellant. to dice Maloney, supra,2 v. in Commonwealth of the court judgment a whether determining test for prong a two established the harm. possible would remove instruction curative decision, important will be following the making In this (1) na exclusive: the necessarily but considerations a reference, spe whether it was particularly, ture of the or at the silence at trial on the accused’s cific comment was, v. as in Commonwealth or whether it time of arrest 780],supra, merely a reference 358, 169A.2d Ross Pa. [403 the incriminating evidence of Common that to the fact uncontradicted; (2) and whether or was undenied wealth the district attor exploited by was the accused’s silence 1237. 349, 365 A.2d 469 Pa. at ney. justices, justice Eagen joined filed a two other one was Justice dissenting opinions. justices In concurring opinion two filed and court, J., supra, per Eagen, Singletary, the C. Commonwealth Maloney controlling opinion was not as it did the indicated majority The court went on of the court. the vote of a not command Maloney Singletary. distinguish The court found that from to objection Maloney without reference was introduced the initial adequate “more and decisive.” instructions were the
Maloney partic demonstrates that court should look at the Here, ular case circumstances of the before it. mention of appellant’s silence a reference end appellant’s was to the statement; it the established limitations of the statement. The statement was only directed two the four counts of threats; terroristic the reference to appellant’s failure comment further was to delineate scope of his state ment. prosecuting attorney made no direct on comment appellant’s invocation right of his to remain silent.3 Nor did he attempt exploit such silence. Assuming the reference was we improper, hold that curative instruction have could adequately protected appellant’s interest.
However, instruction, lack such under present circumstances does not a new justify trial. This court Quart- was faced with a somewhat similar situation in man, supra. passing There references to the defendant’s *7 silence were made by police two officers. Defense counsel’s objections were but for sustained motions new were trial appeal Quartman denied. On argued that such reference to his required silence granting the of a new trial. We found the lower court had not erred in denying mistrial. We also held that the court’s to give failure a curative instruction did not require a new trial. The record there indicated that the trial judge had giving considered such an instruction but decided for against giving one fear the instruction itself would in jury’s reinforce the minds the inference that the was guilty. defendant for Counsel the defendant admitted to having similar reservations. In present the case the record explicit contains no evidence of similar reservations. However, Quartman our reasoning in to applies present case.
Had counsel desired curative instructions in the instant case, requested he could have them. It is clear counsel permitted should be to request likewise that the court give not curative sponte.’ instructions ‘sua In hind- sight, counsel’s decision to forego curative instructions testimony appellant invoking right The record contains no to remain silent. error; is likewise to have been a tactical it
may prove case, tactical to be every In it is a decision irremediable. counsel, an unfa- rendering and the made defense defendant, not who did not should entitle vorable verdict trial, in himself to the maximum his first elect to protect retrial. to an automatic to silence in the instant appellant’s references passing made any respect do in material from those
case
not differ
attorney
In neither case did
district
Maloney.
in
Maloney,
opted
In
counsel
exploit
appellant’s
silence.
were
very adequate
ones
cautionary
for
instructions
case,
every
instant
there is
reason to believe
given. In the
negated any possible
instructions would have
that curative
exposed.
Appellant
which
was
prejudice to
to
objected
himself
requested
should have
instructions
or
on
‘sua
as
to instruct
the matter
charge
failing
the court’s
trial,
at
Electing against
the available relief
sponte.’
error.
complain
prejudicial
not now
appellant may
at
Judgment of sentence affirmed.
BROSKY, J., files a concurring opinion.
BROSKY, Judge, concurring:
Bunting was convicted (4) of four counts of terroristic threats.1 Appropriate post-verdict motions were filed and subsequently denied. On December appellant was sentenced to a probationary (23) term of twenty-three months and fined fifty ($50) dollars on each (4) of the four counts. This appeal followed.
Appellant poses several questions for our consideration. it, First, As we see they is, are: whether 18 Pa.C.S. § face, on its Second, unconstitutionally vague?2 was there sufficient evidence to convict of the Bunting crime of terror Third, istic threats? appellant’s was request for a mistrial improperly denied?
The circumstances out of which the charges against Bunt- ing arose involved public two officials and two of his neigh- bors. All hostility was related to what appellant perceived as an zoning intolerable violation. The first incident in- Whiteside, volved John officer, the township zoning who— when unable to Bunting’s resolve problems—was confronted by appellant’s “I statement: am going get gun, I am going to get Harry Peace and then I coming am after you.” The second incident occurred during a telephone conversa- tion with Stapleton, Girard a township supervisor, Bunting whom—after felt his problem was unresolved—ap- 1. 18 Pa.C.S. § Philadelphia County
2. The Common Pleas Court of has held 18 unconstitutionally vague Pa.C.S. § 2706 in a decision which was not appealed by Judge Howell, written Chalfin. Commonwealth v. (1976).* D. Perry, & C. 3d 644 Contra: Commonwealth v. 9 Pa. D. & C. 3d 13 * opinion, statutory provision In that the court focused on the involv- ing threats public commit violence with the intent to cause inconvenience. *9 454 up your and blow to come over going “I am said:
pellant like all that noise.” if would you and see house neighbor—and Joel Zook—a involved incident The third Zook about Bunting confronted When Zook’s sons. one of had said he Zook’s son claims zoning problem, And: it’s to be used.” going rifle and “high-powered halfway up dadmy catches either me or that if he He said health . . . He said good be for our in the field it won’t he Peace and then before Harry to shoot going that he is dad. get my come down and going he is to gets himself wife— on Ms. Zook—Joel’s incident focused The final son, Christian, appellant said: “He claims whom Joel’s about with her and down the road going up mother my said he sees wipe accident legal to cause a buggy—going horse and her out—[.]” Amendment of the Fourteenth
The Due Process Clause violated if a criminal Constitution is the United States notice reasonable provide it fails to vague is so statute with fails to act accordance purportedly who person to a for which we review a statute upon The standard it.3 is: vagueness give person ordinary statute “that fails
A criminal
conduct
is
contemplated
that his
fair notice
intelligence
Harriss,
v.
United States
statute,”
347
by the
forbidden
(1954), or is so
617,
808, 812,
Colautti however, clear, (1979). It is also L.Ed.2d 596 preserved question appellant properly of the constitutional- 3. The appeal. ity provision See contra: Commonwealth of this on Sullivan, (1979); Pa.Super. Commonwealth v. 409 A.2d Holguin, Pa.Super. The fact legislature] might without difficulty [the “clear precise have chosen and more language” equally *10 capable achieving of the end which sought it does not mean that the statute which is in fact drafted is unconsti- vague.” Powell, 87, United tutionally States v. 423 U.S. 94, 316, 320, 228, (1975). Rather, 96 S.Ct. 46 L.Ed.2d 235 of due requirements process are satisfied if the statute question in contains reasonable guide standards to conduct. prospective 1, 6, 244,
Commonwealth v. 467 Heinbaugh, Pa. 354 A.2d 246 (1976). appears Burt, As Commonwealth v. See, (1980). Connally v. General Construction
Co., 385, 391, 126, 127, 46 U.S. S.Ct. 70 L.Ed.
We are also mindful that allegedly terroristic threats are frequently by spoken made word. Our First Amendment rights given greater are shelter than all rights. our other Accordingly:
where a statute’s literal scope, unaided aby narrowing state interpretation, court is capable of reaching expres Amendment, sion sheltered First the doctrine [of void-for-vagueness] greater demands a degree specifici of than in ty other contents.4
The provisions which Bunting asserts are so vague as to violate due process state: person
A guilty is of a misdemeanor of the first if degree he threatens to commit any crime of violence with intent to terrorize another or to cause building, evacuation of a place of or assembly, facility of public transportation, or otherwise to cause public inconvenience, serious or in reckless disregard causing such terror or inconvenience. Emphasis added.
We review this record mindful disputed that the position of this statute is that which concerns terroristic threats against another individual. appears opinion Judge
4. As in the Chalfln at 1 Pa. D. & C. 3d 647. light viewed in statute when of the portion hold that
We
to an
threat be made
a terroristic
requirement
of the
is
which
action be one
that the threatened
infers
individual
nature, and
action,
credible
to immediate
susceptible
of fear.
apprehension
to cause an
the intent
with
made
find:
understanding we
With this
words, “archaic
“ambiguous”
employ
section does
This
and varied”
with “numerous
classifications,” or words
Franklin,
(“viabili-
supra
v.
Colautti
meanings. Compare
phy-
regulating
of statute
requirement
determination
ty”
void), Papachristou
of abortions
performance
sicians’
ordinance drafted
Jacksonville,
(“vagrancy”
supra
City of
invalid),
Lanzet-
laws
English poor
of archaic
in terms
(1939)
59 S.Ct.
306 U.S.
Jersey,
ta v.
of New
State
“gang”).
to be member
making it crime
statute
(voiding
*11
rejected.
must be
challenge
any vagueness
Accordingly,
421,
Rundle,
F.2d
v.
383
ex rel. Almeida
See United States
stat-
felony-murder
1967)
former
(3d
(upholding
426
Cir.
ute).
178,
Commonwealth
under consider-
language in the statute
the
Consequently,
is therefore constitutional.
vague
and
ation is
evidence for
was insufficient
claims there
Appellant next
of terroristic
him of the crime
convict
trial court to
the
most
light
evidence in a
review the
We shall
threats.
Commonwealth,
with all
conjunction
to the
favorable
therefrom,
if that evi-
to determine
inferences
reasonable
a
Bunting’s guilt beyond
prove
was sufficient
dence
345,
466 Pa.
Ilgenfritz,
v.
Commonwealth
reasonable doubt.
Fortune,
456 Pa.
v.
(1976); Commonwealth
to terrorize listen- persons sought frighten that he his statement of actions description presents evidence to him. The ing action, under cir- made of immediate capable which were which of a nature credibility and assuring their cumstances of fear. apprehension an intention to create indicates an
457 contends his actions did not warrant a convic- Appellant because all his statements did not tion of terroristic threats safety. cause his listeners to fear for their own Messrs. safety feared their and Stapleton family’s Whiteside not their own. This claim has no merit because— allegedly may placed as common sense tells us—one be a state as a result of terrorist remarks directed at their own fear or at those about whom care. All other person persons they indicating remarks caused reactions the listeners feared for being. their own well physical by any
We do not means wish to diminish the harshness of to be called required by opinion. statements terroristic our Rather, that, we hold after a review of the totality of the evidence, were credibly these statements terroristic. Bunting asks us to determine whether
Finally,
request
Supreme
for a mistrial was
denied. The
improperly
Court
concerning
has declared it reversible error to admit evidence
the silence of a defendant after an arrest. Commonwealth
Greco,
However,
this
error
if curable
instructions will
cautionary
not be
grounds
Quartman,
for a mistrial. Commonwealth v.
460,
In Commonwealth v. (1978), following A.2d was admit- involving police ted officer and Williams after the arrest was completed:
Q. What did do you having met Mr. Williams? identification, name, A. I asked him for his personal *12 address, birth, date of as how he inquired came into possession of a vehicle that he was operating, that Mr. Rigney’s.
Q. Did he tell how he you possession came of it? that, 16th, A. He said that on the date prior the he parked along had found the car a street with keys in it and took it for a ride.
Q. happened? Then what
A. After that he elected to remain silent. the error not cure instructions could that corrective
We held presented. arresting officer and exchange between
The us with serious error. not present case does in the instant when following gave Harnish Officer Carl S. the Commonwealth: by examined of his statement? Q. was the nature What possi- verbatim as was taken as much This statement A. ble. at Stapleton stated, I had to Gerald Hunting spoken
Mr. me thing that caused last winter. twenty least times I me times. don’t twenty that he lied to to call him was him, togo to call so I had to house telephone my have told me that he was Stapleton time Each pay phone. involved problems, which something my do about giong to me, one but he never did. So next door buildings these can tell me the differ- Stapleton, you Mr. time I said to house, or if your and bomb if I was to come down ence house your comes down outside with a bulldozer someone to him more than anything I never said window. made heated any his house. I never bombing about to him only at all. I talked to Mr. Whiteside statements about business. the statement. is the extent of
That am with Book—I him about his conversations I asked Zooks; however, nothing there was with the sorry, to those conversations. pertaining said Emphasis added. counsel, then defense Harnish objection from
Following stated: conversa- Harnish, any subsequent was there
Q. Corporal relative to this matter? Bunting with Mr. tions significance. A. Nothing Q. you. Thank us was not so severe as to presented hold the error
We corrected The error could have been require a mistrial. request- were not instructions. Such instructions cautionary *13 Accordingly, ed. this issue has been waived. Common- Quartman, wealth v. supra.
426A.2d137 Ann Martha DILE Mary DILE, Appellant. A.
Superior Pennsylvania. Court of
Argued March 1980.
Filed Feb.