Aftеr being tried without jury, Michael Campbell was found guilty of making a terroristic threat in violation of 18 Pa.C.S. § 2706. He was subsequently sentenced to serve a term of imprisonment for not less than eleven and one-half (ll/é) months nor more than three (8) years. On direct appeal from the judgment of sentence, Campbell argues that the charges against him should be dismissed because: (1) the evidence was insufficient to sustain a finding of guilt; and (2) a delay оf more than five (5) months in returning a verdict, while appellant remained incarcerated, violated Pa.R.Crim.P. 1122, caused unnecessary prejudice, and now requires an arrest of judgment.
Campbell was charged with making a terroristic threat after an incident on May 21, 1991, at the Best Mart convenience store in Newport, Perry County. Appellant waived his right to counsel and conducted his own defense, with the assistance of court appointed stand-by counsel. At the conclusion of the non-jury trial on October 17, 1991, the court deferred its decision pending the preparation of a transcript of the proceedings. A transcript was prepared and filed on November 8, 1991. When a verdict was not forthcoming thereafter, appellant filed, on February 26, 1992, a petition for a writ of habeas corpus. On March 17, 1992, the trial court issued an оrder stating that it would not immediately adjudicate Campbell’s guilt and suggesting that “either the District Attorney, the Chief Probation Officer, or defendant himself consider proceedings under the Mental Health Procedures Act and the Court will in due course adjudicate on the issue of guilt or innocence with or without a report of the aforesaid proceedings.” Appellant then filed a pro se pleading captioned “Motion For Entry Of Not Guilty Verdict.” In response, the trial court entered an order, on March 24, 1992, adjudicating appellant guilty of the terroristic threat charge. After verdict, appellant submitted to the trial court a pro se “Motion To Appeal Guilty Verdict,” which was made a part of the record on April 8, 1992. Counsel was appointed and given a period of ten (10) days to supplement appellant’s pro se post-trial
We reject the Commonwealth’s contention that the issues raised on appeal have been waived by the failure to file timely post-trial mоtions. “It is well settled that only issues raised in post-trial motions are preserved for appellate review.”
Commonwealth v. Copeland,
In evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, which has won the verdict. We then determine whether the evidence was sufficient to permit the finder of fact to determine that each and every element of the crime charged was established beyond a reasonable doubt. See:
Commonwealth v. Smith,
The evidence was that on the evening of May 20, 1991, appellant was standing in the cashier’s line at the convenience store, waiting to pay for gasoline. In front of him were two young women who were purchasing cigarettes. When the cashier, who was Tracy Kratzer, asked if they were old enough to buy cigarettes, they laughed and said they were twenty-one years of age. Embarrassed for having asked the question, Kratzer raised her hand to her head and pointed to it with her index finger, intending to signify the foolishness of
On the following day, May 21, 1991, at or about 1:45 p.m., appellant returned to the Best Mart store and approached Pamela Book, the cashier who was then on duty and told her that the cashiеr who had worked the previous day had gestured to him in a manner which he did not appreciate. He demonstrated the gesture and directed Book to give a message to the cashier with the bleached blonde hair that “when I decide to -do this, it will be on her shift and there will be lots go down.” Book felt threatened by appellant’s conduct, having interpreted the gesture he made to represent a gun and, thus, fearing thаt appellant would return when Kratzer was working and would cause bodily harm to other persons in the store. She described appellant’s manner as direct and matter of fact, as though he knew exactly what he wanted to say. She said further that appellant’s demeanor suggested that he meant to carry out his threat. After appellant had left the store, Book was able to observe the license number of appellant’s vehicle. She contacted the state police, and a trooper was dispatched to the Best Mart store to investigate the incident. When interviewed by the trooper, according to the evidence, Pamela Book was still visibly shaken. When Tracy Kratzer was later summoned to the store and told of appellant’s remarks, she too appeared to be frightened.
Appellant was charged with making a terroristic threat in an information which averred that he “did threaten to commit a crime of violence with the intent to terrorize another in reckless disregard of the risk of causing such terror ... in that [appellant] did have a message of terror delivered to Tracy Kratzer indicating [that] she and other people would be harmed by [appellant].... ” Appellant denied guilt. He contеnded that his remarks had been intentionally ambiguous so that they could not be construed as a threat to commit a
The crime of making a terroristic threat is defined by statute as follows:
§ 2706. Terroristic threats
A person is guilty of a misdemeаnor 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.
18 Pa.C.S. § 2706. “The purpose of [Section 2706] is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience. It is not intended by this section to penalize mere spur-of-the-moment threats which result from anger.” 18 Pa.C.S. § 2706, Official Comment — 1972. See:
Commonwealth v. Anneski,
To obtain a conviction for making a terroristic threat, the Commonwealth must prove that: (1) the defendant made a threat to commit a crime of violence; and (2) such threat was communicated with the intent of terrorizing or with reckless disregard for the risk of causing terror. See:
Commonwealth v. Lumpkins,
Instantly, appellant’s remarks, although somewhat ambiguous, were combined with a hand gesture symbolic of a gun pointed at his head. His remarks were made in response to a perceived insult which appellant mistakenly believed that Tracy Kratzer had directed to him on the previous day. Viewed in this context, appellant’s message to Kratzer that “when I do this, it will be on her shift and there will be lots go down,” could reasonably be interpreted as a threat by appellant that he would commit suicide and harm Kratzer, as well as other persons in the store as he carried out what he mistakenly believed Kratzer to have suggested. Given appellant’s comрlete misinterpretation of Kratzer’s actions on the previous day, it is unlikely that Kratzer would have understood the full meaning of the message which appellant gave to Pamela Book.
Appellant’s desire to terrorize Kratzer is demonstrated by his own testimony at trial. He said that he had been very angry as a result of Kratzer’s making a hand gesture, which he believed to be a suggestion that he kill himself. Consequently, he wanted to get even with Kratzer by saying something which would “screw with her mind.” From this tеstimony appellant’s intent to cause fear and alarm in Kratzer seems patently clear. Given the context in which the incident occurred, his comments and actions could reasonably be interpreted as a threat to physically harm Kratzer. This is the manner in which appellant’s conduct was interpreted by Pamela Book, whom he had told to give the message to Kratzer. Under all of these circumstanсes, therefore, we are satisfied that there was sufficient evidence to support the trial court’s finding that appellant was guilty of making a terroristic threat.
We reject also appellant’s contention that his remarks were a mere spur of the moment expression of anger and, therefore, not subject to being penalized under the terroristic threats statute. By his own testimony, appellant reveаled otherwise. Appellant said that he had waited until the following day to respond to the perceived insult by Kratzer so that he would have sufficient time to cool off and think of something clever to say. This testimony discloses premeditated, intentional conduct on appellant’s part, rather than a contemporaneous expression of anger. Such conduct is within the statutory proscription against thе making of terroristic threats. See: 18 Pa.C.S. § 2706.
Pa.R.Crim.P. 1122 provides as follows:
Rule 1122. Time for Court Action Following Trial
All motions for a new trial, motions for judgment of acquittal after the jury has been discharged without agreeing upon a verdict, and motions in arrest of judgment shall be decided within thirty days after argument except under unusual circumstances.
A verdict shall be rendered in all non-jury cases within seven (7) days after trial.
Appellant contends that the trial court’s failure to render a verdict within seven days of his non-jury trial, as was required by Rule 1122, requires that he be discharged. The Commonwealth concedes that a technical violation of Rule 1122 occurred but suggests that the delay was necessitated by the trial court’s request for a transcript and by the court’s sua sponte investigation into proceedings under the Mental Health Procedures Act as an alternative to an adjudication of guilt. Finally, the Commonwealth asserts that because appellant was given credit for the time he served prior to the rendering of the verdict, he was not prejudiced by the delay.
Our research has disclosed no appellate court decisions which have determined when, and under what circumstances, a trial court’s failure to issue a verdict within seven days after a non-jury trial will require a discharge of a defendant.
3
However, in
Commonwealth v. Glover,
Finally, appellant contends that the delay between the time that oral argument was held on his post-verdict motions and the time that his post-verdict motions were deniedviolated Pa.R.Crim.P. 1122, and thus he should be discharged.
Pa.R.Crim.P. 1122 states in pertinent part: “All motions for a new trial and motions in arrest of judgment shall be decided within thirty days after argument except under unusual circumstances.” The record in the present case indicates that the only oral argument of appellant’s post-verdict motions occurred on March 25, 1981, and that the trial court denied these motions 35 days later, on April 29, 1981. Since appellant is unable to demonstrate any substantial prejudice from this delay, and the trial court’s denial of post-verdict motions took only 5 days longer than required by Pa.R.Crim.P. 1122, appellant’s contention is without merit.
Id.
at 530,
Applying the same reasoning to the rule’s direction regarding the time for a verdict after completion of a non-jury trial, we hold that a technical violation of the rule will not, standing alone, require that a defendant be discharged. Before a trial court delay will entitle a defendant to a discharge, it must appear that the defendant has been prejudiced by the delay. As the delay increases, however, the need to show a specific prejudice will decrease accordingly.
In requiring a trial court to render a verdict within seven days of trial, the primary purpose of Rule 1122 was to ensure a prompt verdict in all non-jury trials. In the instant case, that purpose was nоt served. Although the trial court initially deferred a ruling pending preparation of a transcript of the trial proceedings, the record discloses that the transcript was prepared and filed as a part of the record on November 8,1991. Nonetheless, the trial court did not return a verdict until March 24, 1992. The trial in the instant case had been short and the testimony straightforward. The record reveals no legitimate exсuse for the trial court’s lengthy delay in returning a verdict. As for the Commonwealth’s contention that the trial court delayed issuing a verdict to investigate possible mental health proceedings as an alternative to a guilty verdict, this concern was expressed by the
After careful review and consideration, we hold that appellant was substantially prejudiced by the trial court’s delay in rendering a verdict. Appellant remained incarcerated for more than five months before the trial court finally adjudicated him guilty of making a terroristic threat. During this time, appellant, even though nоt convicted of any crime, was powerless to move the case along. He could not file post-trial motions or even request a date for sentencing, for he had not been found guilty. He was, in fact, in limbo, a prisoner subject to the whim of the trial judge, who, unless the rule were enforced, could hold him indefinitely by delaying a verdict. The fact that appellant was ultimately given credit for time served prior to the vеrdict, does not, in our view, alleviate the prejudice inherent in the court’s lengthy delay in returning a verdict. By the time he was sentenced, he had already served almost the entire minimum sentence which the court imposed. 4 To permit such a long delay between trial and verdict in a non-jury case, without any valid excuse therefor, would be to permit trial courts to require defendants to serve their sentences, with no means of obtaining appellate review, by simply refusing to return a verdict.' The delay, moreover, subjected the defendant to an anxiety which the rule was intended to eliminate or, at least, reduce. The delay was particularly egregious here, where there was a substantial issue of whether appellant’s conduct had constituted a violation of the statute.
We do not hold that any and all violations of Pa.R.Crim.P. 1122 will require that a defendant be discharged. It is highly unlikely that a delay of only a few days between trial and verdict would result in substantial prejudice to a defendant. Even a delay of several months may not be prejudicial where
The judgment of sentence is reversed, and appellant is discharged.
Notes
. Pa.R.Crim.P. 1123(a) provides as follows:
(a) Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument, a hearing, or both shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard. If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.
. These issues were also raised by appellant, prior to the trial court’s rendering of a verdict, in his petition for writ of habeas corpus and his "Motion For Entry Of Not Guilty Verdict."
. In
Commonwealth v. Young,
. The Commonwealth represents to this Court in its appellate brief that appellant has been granted parole.