In the Interest of: Y.A.J., Appeal of: Y.A.J. ( 2018 )

J-S60007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Y.A.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: Y.A.J., A MINOR :
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: No. 718 MDA 2018
Appeal from the Dispositional Order February 26, 2018
In the Court of Common Pleas of Luzerne County Juvenile Division at
No(s): CP-40-JV-0000017-2018
IN THE INTEREST OF: Y.A.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: Y.A.J., A MINOR :
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: No. 719 MDA 2018
Appeal from the Dispositional Order Entered February 26, 2018
In the Court of Common Pleas of Luzerne County Juvenile Division at
No(s): CP-40-JV-0000451-2017
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 23, 2018
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* Retired Senior Judge assigned to the Superior Court.
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Appellant, Y.A.J., presently twelve years old, appeals from the
dispositional order1 entered on February 26, 2018, in the Court of Common
Pleas of Luzerne County. We affirm.
Appellant was charged at docket number JV 451-2017 with receiving
stolen property,2 a misdemeanor of the first degree, as a result of an incident
on May 15, 2017. Appellant was alleged to have stolen a bicycle from the
garage of Deborah and Christopher Parker. N.T., 2/26/18, at 45, 51. Mr.
Parker eventually found the bicycle, damaged, but with its original serial
number intact, outside of Appellant’s elementary school. Id. at 48–49, 52–
54. While Appellant initially claimed his parents bought him the bicycle, there
was no such supporting evidence offered at the adjudicatory hearing. Id. at
55–56, 63.
While on informal probation, Appellant was charged at docket number
JV 17-2018 with terroristic threats, a misdemeanor of the first degree, and
one count each of three summary offenses—harassment, disorderly conduct,
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1 “In juvenile proceedings, the final order from which a direct appeal may be
taken is the order of disposition, entered after the juvenile is adjudicated
delinquent. The order of disposition in a juvenile matter is akin to the
judgment of sentence in a criminal matter in that both are final orders subject
to appeal.” In Interest of P.S., 158 A.3d 643, 649 (Pa. Super. 2017)
(internal citations omitted), appeal denied, 174 A.3d 1029 (Pa. 2017).
2 18 Pa.C.S. § 3925(a).
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and criminal trespass—as a result of an incident on January 7, 2018.3
Appellant, accompanied by three other juveniles, entered a Save-A-Lot store
on January 7, 2018, at approximately 4:15 p.m. N.T., 2/26/18, at 10–12.
Appellant began cursing and hurling racial epithets at employees, who told
Appellant to leave the store. Id. at 6, 7, 10–11. Appellant stepped out of the
store, stood at the open doorway and yelled, “I will blast you, nigger, you
don’t know me,” and opened his jacket, revealing the black handle of a
firearm. Id. at 7–8.
The juvenile court summarized the procedural history as follows:
[Appellant] had been on informal probation commencing on
January 2, 2018[,] under Petition JV# 451-2017 and as a result
of the incident alleged in JV# 17-2018 he was detained and placed
in shelter care. [Appellant] had a detention hearing before the
hearing officer on January 18, 2018[,] and was returned to his
home under house arrest with electronic monitoring and directed
to comply with a psychological evaluation at Children’s Service
Center. The evaluation occurred on January 30, 2018.
An adjudication hearing was held on February 26, 2018[,]
on both petitions at which time [Appellant] was found factually
responsible for all charges contained in the two stated petitions.
Having been found factually responsible for the delinquent acts of
Receiving Stolen Property under Petition JV# 451-2017 and
Terroristic Threats under Petition JV# 17-2018[,] the juvenile was
found to be in need of treatment, rehabilitation and supervision
and declared a delinquent child in accordance with the Law of the
Commonwealth of Pennsylvania. Following testimony and
arguments, the [c]ourt ordered placement at Glen Mills Academy.
Juvenile Court Opinion, 4/4/18, at 1–2.
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3 18 Pa.C.S. §§ 2706(a)(1), 2709(a)(1), 5503(a)(1), and 3503(b)(1),
respectively.
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On March 6, 2018, Appellant filed a post-dispositional motion for
reconsideration, which the juvenile court denied on April 4, 2018. Appellant
filed timely notices of appeal to this Court. We consolidated the appeals sua
sponte on May 23, 2018.
Appellant raises the following two issues on appeal:
1. Whether the evidence, in 17-JV-2018, was sufficient to
establish that [Appellant] was responsible for terroristic threats
where it failed to establish that [Appellant] made a threat or
possessed the intent to terrorize?
2. Whether the juvenile court erred or abused its discretion in the
disposition imposed where the disposition was neither the least
restrictive nor most individualized disposition that could have,
under the circumstances, been imposed?
Appellant’s Brief at 3.
Appellant’s first issue challenges the sufficiency of the evidence to
support his adjudication of terroristic threats. When examining a challenge to
the sufficiency of the evidence supporting an adjudication of delinquency, this
Court employs a well-settled standard of review:
When a juvenile is charged with an act that would constitute
a crime if committed by an adult, the Commonwealth must
establish the elements of the crime by proof beyond a reasonable
doubt. When considering a challenge to the sufficiency of the
evidence following an adjudication of delinquency, we must review
the entire record and view the evidence in the light most favorable
to the Commonwealth. In determining whether the
Commonwealth presented sufficient evidence to meet its burden
of proof, the test to be applied is whether, viewing the evidence
in the light most favorable to the Commonwealth and drawing all
reasonable inferences therefrom, there is sufficient evidence to
find every element of the crime charged. The Commonwealth may
sustain its burden of proving every element of the crime beyond
a reasonable doubt by wholly circumstantial evidence.
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The facts and circumstances established by the
Commonwealth need not be absolutely incompatible with a
defendant’s innocence. Questions of doubt are for the hearing
judge, unless the evidence is so weak that, as a matter of law, no
probability of fact can be drawn from the combined circumstances
established by the Commonwealth. The finder of fact is free to
believe some, all, or none of the evidence presented.
Interest of P.S., 158 A.3d at 650 (citing In Interest of J.G., 145 A.3d 1179,
1188 (Pa. Super. 2016) (internal citations omitted)).
The juvenile court determined that Appellant committed, inter alia,
terroristic threats with the intent to terrorize another, which is defined as
follows:
(a) Offense defined.--A person commits the crime of terroristic
threats if the person communicates, either directly or indirectly, a
threat to:
(1) commit any crime of violence with intent to
terrorize another;
18 Pa.C.S. § 2706. “The elements necessary to establish a violation of the
terroristic threats statute are: (1) a threat to commit a crime of violence; and
(2) that the threat was communicated with the intent to terrorize.”
Commonwealth v. Walls, 144 A.3d 926, 936 (Pa. Super. 2016), appeal
denied, 167 A.3d 698 (Pa. 2017) (citing Commonwealth v. Vergilio, 103
A.3d 831, 833 (Pa. Super. 2014)).
Appellant contends that the evidence was insufficient to establish that
he either terrorized the victim or intended to terrorize another. Appellant’s
Brief at 6. His tripartite claim avers, in alternative arguments, that 1) the
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victims were unaware of the threat, 2) Appellant did not utter a threat, and
3) Appellant lacked the requisite intent to terrorize. Id. at 6–12. We disagree.
Appellant asserts that the only Save-A-Lot employee to testify at the
adjudication hearing, Sav-A-Lot night manager Thaliya Dublin, testified that
Appellant and his cohorts were cursing at Diane Grigan, also referred to as
Ms. Dee,4 and the store manager, Mr. Jones.5 Appellant’s Brief at 4, 7–8.
Appellant maintains that because Ms. Dublin was “not a named victim,” the
evidence was insufficient to establish that Mr. Jones or Ms. Dee either heard
or were made aware of the threat or saw the firearm. Id. at 10. Appellant
also avers that because he never “mentioned a gun,” his statement, “I will
blast you, [******], you don’t know me,” did not “rise to a threat of violence.”
Id. at 11. Lastly, Appellant argues that his threat was a mere “result of
transitory anger, rather than a result of an intent to terrorize.” Id. at 12.
In contrast to Appellant’s version, Ms. Dublin testified that Appellant had
been in the store on prior occasions and had been asked to leave “a lot of
times.” N.T., 2/26/18, at 6. Ms. Dublin described the scene on January 7,
2018, as follows:
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4 Ms. Dee was hospitalized with the flu on the date of the hearing and did
not testify. N.T., 2/26/18, at 9.
5 Mr. Jones’s first name is not identified in the record.
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Well, when I came to the situation [Appellant] was like
cursing at Miss Jones,[6] telling her, You n........, and Eff you, and
all this stuff. I was like, What’s going on? And Miss Dee was like,
Oh, this kid came again. I was like, Can you please leave the
store[?] And then they were asking him to leave the store and as
he proceeded out the store I was with him in front of the store.
And I was telling him, You’re too young, just go, just leave, just
go home. And he was still there cursing, arguing.
* * *
Then he continued cursing. He was like, I will blast you,
n….., you don’t know me. I was telling him, you’re too young,
just leave, just go home. You don’t want to go to jail. And Miss
Dee proceed[ed] to call the police. And he was like with his hand
in his jacket. That’s when I saw like a black handle and I realized
it was a gun. And I told Miss Dee, I said that’s a gun. I think
that’s a gun.
Id. at 7–8.
Contrary to Appellant’s assertion, “[D]irect communication of [a] threat
between the perpetrator and the victim is not a requisite element of the crime
of terroristic threats.” Commonwealth v. Kelley, 664 A.2d 123, 127 (Pa.
Super. 1995). Moreover, Appellant’s assumption that neither Ms. Dee or Mr.
Jones could have heard Appellant’s threat is not supported in the record. Ms.
Dublin described Appellant as standing “[i]n front of the store. In front of the
door.” N.T., 2/26/18, at 7. She stated Appellant “was telling my co-worker
that he gonna blast him and shoot him, and he was telling Miss Dee, You’re a
bitch, and that stuff.” Id. at 8. Ms. Dublin described Appellant’s threats as
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6 It is unclear from the record whether the reference to Miss Jones is a
typographical error referring to Mr. Jones, the Sav-A-Lot manager, or a
reference to another employee.
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“Very loud.” Id. When Appellant made the threat and revealed the gun in his
jacket, Ms. Dublin told Miss Dee, “[T]hat’s a gun.” Id. at 8. Accordingly,
Appellant’s conduct met the requirement that the threat must be
communicated to the victim. Kelley, 664 A.2d at 127 (defendant’s
communication of a threat to the victim’s secretary, who later told the victim,
was sufficient communication of a threat). As noted supra, the crime of
terroristic threats requires that the defendant communicates a threat “either
directly or indirectly.” 18 Pa.C.S. § 2706(a) (emphasis added). We recently
reiterated that “terroristic threats do not have to be communicated directly.”
Commonwealth v. Beasley, 138 A.3d 39, 47 (Pa. Super. 2016), appeal
denied, 161 A.3d 791 (Pa. 2016). Here, the Commonwealth proved that
Appellant made a threat to commit a crime of violence, and the threat was
communicated with the intent to terrorize another or with reckless disregard
for the risk of causing terror. Commonwealth. v. Sinnott, 976 A.2d 1184,
1188 (Pa. Super. 2009), aff’d in part, rev’d in part on other grounds, 30 A.3d
1105 (Pa. 2011). Because the evidence reflects that Appellant successfully
and intentionally communicated his threat, this challenge to the sufficiency of
the evidence for his terroristic-threats conviction merits no relief.
We also reject Appellant’s claim that his threat was not a threat but
merely was nonverbal communication that was insufficient to support the
crime of terroristic threats. Appellant’s Brief at 10. Appellant’s
communication constituted both a verbal threat, “I will blast you, [******],”
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and a threatening gesture, by moving aside his jacket to reveal a firearm.
N.T., 2/26/18, at 7–8.
We similarly reject Appellant’s final challenge to the sufficiency of the
evidence, that his statement was a mere spur-of-the-moment outburst.
Appellant’s Brief at 11. Appellant relies upon Walls, 144 A.3d 926, claiming
that his threat was merely a result of “transitory anger, rather than a result
of an intent to terrorize.” Appellant’s Brief at 12. We disagree. This Court
acknowledged numerous times that “[b]eing angry does not render a person
incapable of forming the intent to terrorize.” Id. at 936; Commonwealth v.
Walker, 836 A.2d 999, 1001 (Pa. Super. 2003); Commonwealth v.
Reynolds, 835 A.2d 720, 730–731 (Pa. Super. 2003).
Moreover, the fact pattern in Walls is dissimilar. We noted therein that
the appellant did not specifically threaten harm to the prosecutor presently or
in the future, he merely made a spur-of-the-moment statement as he was
being led away. Walls, 144 A.3d at 937. That is not the case here. Appellant
carried a gun into a store from which he previously had been banned, he
shouted “I will blast you, [******],” while simultaneously revealing his
concealed weapon. N.T., 2/26/18, at 7–8. As the Commonwealth avers,
Appellant “cannot now claim innocence because the situation he deliberately
[created] allegedly made him angry.” Commonwealth’s Brief at 14. Like the
juvenile court, we find the evidence more than ample to establish terroristic
threats.
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In his second issue, Appellant asserts that the juvenile court erred or
abused its discretion in the disposition imposed because it was “neither the
least restrictive nor most individualized disposition” that could have been
imposed. Appellant’s Brief at 12. As noted, the juvenile court placed Appellant
at Glen Mills, a residential facility for the treatment of twelve to fourteen-year-
old adolescents that typically is a six-month program. Id. at 12, 15; N.T.,
2/26/18, at 77. Appellant argues that the Glen Mills disposition is “overly
restrictive and punitive,” and the juvenile court overlooked several other
programs. Appellant’s Brief at 13, 15.
Our standard of review of a dispositional order is settled. “[T]he Juvenile
Act grants to the court broad discretion in disposition. 42 Pa.C.S.A. § 6341,
§ 6352; In re Love, 646 A.2d 1233 (Pa. Super. 1994).” Commonwealth v.
K.M.-F., 117 A.3d 346, 350 (Pa. Super. 2015) (quoting In the Interest of
A.D., 771 A.2d 45, 53 (Pa. Super. 2001) (en banc)). Therefore, we may not
overturn a juvenile court’s decision unless that discretion was manifestly
abused. In re R.D., 44 A.3d 657, 664 (Pa. Super. 2012).
Pennsylvania Rule of Juvenile Court Procedure 512, “Dispositional
Hearing,” provides, in pertinent part, that the juvenile court state on the
record in open court its disposition, the reasons therefore, the terms,
conditions, and limitations of the disposition, and if the court removes the
juvenile from his home, findings and conclusions of law that formed the basis
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of its decision consistent with 42 Pa.C.S. §§ 6301 and 6352. Pa.R.J.C.P.
512(D). This juvenile court explained its disposition as follows:
The [c]ourt considered all factors listed in Rule 512(D) and
found the least restrictive option to be placing [Appellant] at Glen
Mills Academy.
The [c]ourt heard inter alia, extensive testimony from
juvenile probation Officer Jamie Harned regarding her familiarity
with [Appellant] and involvement in his supervision. (N.T.: pg. 65
thru 76), Paul McDonough, (N.T. 76 thru 78), Kathleen Lech, (N.T.
78 thru 81) and Portia Brown, (N.T. 81 thru 88) all incorporated
herein by reference. In particular at N.T. 92 thru 94 the [c]ourt
outlined its reasons for the disposition at Glen Mills Academy and
specifically found:
Out-of-home placement is appropriate and I direct that
[Appellant] shall be placed at Glen Mills Young Offender Program.
The following facts that indicate out-of-home placement [is]
appropriate include, but not limited to, the serious nature of the
offenses. He presents a clear danger to himself and others in the
community. There has been a history of failure under community
supervision. Home life renders removal imperative, and
[Appellant] has treatment needs that require specialized care.
This disposition is best suited to [Appellant’s] treatment,
supervision, rehabilitation and welfare, imposing the minimum
amount of confinement that is consistent with the protection of
the public, and the rehabilitative needs of this young man,
providing balanced attention to the protection of the community,
imposition of accountability for offenses committed, and the
development of competencies to enable this young man to
become a responsible and productive member of the community.
This disposition and placement is necessary to address the
serious issues of [Appellant] which cannot be addressed with least
restrictive measures. Out-of-home placement was considered,
and there has been a history of failure not only in school but in
the community. I feel he poses a danger to himself and others. I
incorporate the entire record. And I do believe he has specialized
needs which will be best addressed at Glen Mills which will address
any anger, emotional, behavioral, educational, health, substance
issues, inter alia.
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I am concerned for his safety and the safety of others. I
incorporate the entire record of this proceeding, including the
history of failure under community supervision, and home life,
rendering removal imperative, along with the treatment needs as
outlined to me today that require specialized attention.
Juvenile Court Opinion, 4/4/18, at 21–22.
At the hearing, Appellant’s statements, when he previously was confined
at Vision Quest, were read into the record by Appellant’s probation officer, Ms.
Jamie Harned:
[Appellant] stated on multiple occasions that he will fight, shout
or do whatever he has to. [Appellant] described taking six shots
at anybody who tells him to do something he doesn’t like.
[Appellant] also stated he will punch out his probation [officer] or
judge if he doesn’t go home. [Appellant] would also describe how
he would cut his monitor off if he was on house arrest. [Appellant]
stated that his family taught him to live and think this way and he
doesn’t make threats, they are promises.
N.T., 2/26/18, at 68. Ms. Harned testified that Appellant had not “taken
accountability for his negative behavior.” Id. at 70.
Ms. Harned also described Appellant’s behavior at Lynwood Elementary
School as consistent with his attitude expressed above. At the dispositional
hearing, she identified nine incidents, including a fight with another student
that required the intervention of six staff members to subdue Appellant, the
destruction of a “de-escalation room,” and threats directed to staff. N.T.,
2/26/18, at 66–67. Ms. Harned recommended confinement at the Young
Offender Program at Glen Mills School. Id. at 70.
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Based on the foregoing, we conclude that Appellant’s issue is devoid of
merit. Therefore, we affirm the juvenile court’s February 26, 2018
dispositional orders.
Dispositional orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2018
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