Com. v. Johnson, T. ( 2022 )

J-S10029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY LOROWN JOHNSON :
:
Appellant : No. 1330 MDA 2021
Appeal from the Judgment of Sentence Entered July 22, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005481-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: JULY 1, 2022
Timothy Lorown Johnson appeals from the judgment of sentence
imposed following his conviction for terroristic threats. See 18 Pa.C.S.A. §
2706(a)(1). Johnson argues the court erred in admitting Facebook posts
without proper authentication and in not instructing the jury on the principles
of transitory anger. We affirm.
Johnson was arrested in September 2017, following an argument with
his brother Larry Johnson (“Larry”). The trial court summarized the evidence
presented at trial as follows:
Evidence presented by the Commonwealth demonstrated
that on September 16, 2017, [Johnson] and . . . Larry . . .
became involved in an argument over money. According to
Larry’s testimony, the argument began inside Larry’s home,
and culminated with [Johnson] retreating to his car in the
driveway of the home and Larry retreating to his front yard
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* Retired Senior Judge assigned to the Superior Court.
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to do some work. At some point while Larry was in the front
yard and [Johnson] was in his car, Larry could hear
[Johnson] talking on the phone with someone, and Larry
stated while on the phone that he would “kill everybody in
this house.” Sometime thereafter, Larry received a series of
phone calls from friends and family members to alert him to
various threatening messages that [Johnson] had posted on
Facebook. Larry read the Facebook posts himself and then
went to a neighbor’s house to call 911.
Based on Larry’s 911 call, Swatara Township Police were
dispatched to his home. Initially responding to the scene
were Officer Tyler Margeson, Officer Adam Leitzell, and
Corporal Timothy Bloss, all who testified at trial. Upon the
officers’ arrival at approximately 4:30 p.m., Larry was
standing at the end of his driveway waiting for the officers
to arrive, and there was a red Ford Escape parked in the
driveway. Larry conveyed to Officer Leitzell that [Johnson]
was inside the vehicle with a knife. Larry stated to the officer
that [Johnson] was from Indianapolis and that he had
moved in with Larry about 10 months prior. Officer Leitzell,
Officer Margeson, and Corporal Bloss then approached the
Ford Escape and observed [Johnson] sitting in the driver’s
seat drinking a glass of whiskey and smoking a cigarette.
After several attempts to gain his attention, [Johnson], who
appeared agitated and intoxicated, lowered the driver’s side
window. Officer Margeson observed a bottle of Jack Daniels
whiskey on the passenger’s seat, and he saw the handle of
a knife on the passenger side floorboard, jammed in
between the seat and the center console.
While [Johnson] remained in the car, Officer Margeson
began conversing with [Johnson]. [Johnson] relayed that he
had been living at Larry’s house for about 10 months and
that during that time frame, [Johnson] had performed
construction work on the house. [Johnson] told the officer
that he and Larry got into an argument over money that
Larry allegedly owed [Johnson] for the construction work,
and Larry asked [Johnson] to leave the house. According to
Officer Margeson, throughout the course of his conversation
with [Johnson], [Johnson] repeatedly stated that he was
going to stab Larry and that he “understood why Kane [sic]
killed Abel.” Although [Johnson] did not make this
statement to Larry directly, Officer Margeson recalled that
Larry was standing at the base of the driveway and would
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have been able to clearly hear what [Johnson] said.
[Johnson] admitted that he had a knife in his car, and he
said that he had just sharpened it a week earlier so he knew
it would be an effective weapon. During his conversation
with Officer Margeson, [Johnson’s] tone fluctuated. When
talking about stabbing Larry, [Johnson] was screaming at
the top of his lungs, but intermittently, [Johnson] would
calm down and express how much he loved Larry.
While Officer Margeson was speaking with [Johnson] at the
vehicle, Officer Leitzell retreated to the garage to speak with
Larry and ask him about how the events of the day had
transpired. Larry told Officer Leitzell that he was frustrated
with [Johnson] for failing to hold a job and contribute to
household bills, and because of this, he had told [Johnson]
that he had to leave the house. Larry told the officer that
when he asked [Johnson] to leave, [Johnson] demanded
money, to which Larry responded by throwing $200 at
[Johnson]. [Johnson] threw the money back at Larry, saying
that it was not enough. According to Larry, he and [Johnson]
then started to argue, and [Johnson] went and retrieved a
knife and threatened to stab Larry. At some point during the
argument, [Johnson] ran to his car, which is where he
remained when officers arrived. During his conversation
with Officer Leitzell, Larry pulled up a Facebook page which
he represented to be [Johnson’s] and showed the officer
four threatening Facebook posts purportedly written by
[Johnson] on [Johnson’s] Facebook page. Officer Leitzell
wrote down the text of those four posts verbatim in his
police report. According to Officer Leitzell's report, the first
post said: “Do you want to witness a murder on TV? Where
he goes?” The second post stated: “I’ll kill all y’all. Don’t
fuck with me.” The third post read: “I’m going to stick this
knife straight through his heart. I can understand why I
can’t killed Abel.” The fourth post said: “Give me - give me
ya’ll, forgive me right now I think I’m about to kill my
brother. Yeah, I’m drinking, but I’m not drunk and I know
what it’s like to be fucked over.”
After Larry showed Officer Leitzell the Facebook posts,
Officer Leitzell eventually returned to [Johnson’s] car
alongside Officer Margeson, and they engaged in a
discussion about where [Johnson] could stay since Larry
was ejecting him from the house. They discussed contacting
[Johnson’s] uncle, and [Johnson] was advised that he could
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use Officer Margeson’s patrol phone to call his uncle. At that
point, [Johnson] exited his car and was taken into custody.
A search of the vehicle recovered the knife and whiskey
bottle that Officer Margeson had observed when initially
approaching the vehicle.
Trial Court Opinion, filed Dec. 8, 2021, at 2-4 (citations to record omitted).
Prior to and during trial, Johnson objected to the authentication of the
Facebook posts. N.T., July 20, 2021, at 5; 56-59; 94-96. The court overruled
the objection. Id. at 96.
Johnson also submitted proposed jury instructions, including an
instruction that a person does not possess intent to terrorize based on spur-
of-the-moment threats:
However, in considering whether the defendant actually
possessed the a crime of violence with [sic] the intent to
terrorize Larry Johnson, you must be guided in your
consideration by the principal that one possesses the intent
to terrorize when one makes threats which seriously impair
personal security or is intended to put one into a state of
“extreme fear” or “emotional despair”. One does not
possess the intent to terrorize by mere spur-of-the-
moment threats which result from anger.
Defendant’s Proposed Jury Instructions, filed July 20, 2021, at 8 (emphasis
added). The court did not include the proposed instruction in the final jury
instructions. Counsel again raised the issue with the trial court at sidebar 1
following the charge and after the jury verdict. N.T., July 20, 2021, at 177.
____________________________________________
1 This sidebar was not transcribed, but after the verdict, Johnson’s counsel
noted that they discussed the instruction at sidebar and preserved her
objection, and neither the trial court nor the Commonwealth dispute this. N.T.,
July 20, 2021, at 177.
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The jury found Johnson guilty of terroristic threats and not guilty of
simple assault (attempts by physical menace to put another in fear of
imminent serious bodily injury), 18 Pa.C.S.A. § 2701(a)(3). The trial court
sentenced Johnson to 18 months’ county probation. Johnson filed a post-
sentence motion, which the trial court denied. Johnson filed a timely notice of
appeal.
Johnson raises the following issue:
1. In a prosecution for terroristic threats, did not the trial
court err in admitting various social media communications
and related testimony when the Commonwealth failed to
authenticate such evidence under Pa.R.E. 901 by
establishing [Johnson’s] authorship of such
communications?
2. Did not the court err in refusing to instruct the jury that
the charge of terroristic threats at 18 Pa.C.S.A. § 2706 does
not encompass “mere spur-of-the-moment threats which
result from anger,” a principle explicitly set forth in the
official comment to 18 Pa.C.S.[A.] § 2706?
Johnson’s Br. at 5.
In his first issue, Johnson argues the court erred in overruling his
objection to the introduction of the Facebook posts, which he alleges were
inadmissible because the Commonwealth failed to authenticate the posts. He
claims this Court has acknowledged the difficulty in authenticating electronic
communications, as more than one person can use an email address or
account, social media accounts may be falsified, and a legitimate account may
be accessed by another. Id. at 21. He notes there must be sufficient evidence
of authorship of the messages offered into evidence. He claims that here there
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was no direct evidence that Johnson authored the posts and no witnesses
testified that he admitted to being the author. Further, “there [was] a dearth
of ‘contextual clues’ that prove the identity of the author,” as he alleges the
posts do not appear to be in response to a particular event on a particular
date or incorporate unique facts about the event, and the posts do not
reference the events that purportedly triggered the threats. Id. at 24.
A ruling on the admissibility of evidence is “committed to the [trial]
court's discretion and will only be reversed on appeal where there is an abuse
of discretion.” Commonwealth v. Rogers, 250 A.3d 1209, 1215 (Pa. 2021).
“An abuse of discretion occurs when the law is overridden or misapplied, or
the judgment exercised was either manifestly unreasonable or the product of
partiality, prejudice, bias, or ill will.” Id.In general, “to satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Pa.R.E.
901(a). For digital evidence, including social media posts, the proponent must
connect the digital evidence with the person through direct or circumstantial
evidence:
(11) Digital Evidence. To connect digital evidence with a
person or entity:
(A) direct evidence such as testimony of a person with
personal knowledge; or
(B) circumstantial evidence such as:
(i) identifying content; or
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(ii) proof of ownership, possession, control, or access
to a device or account at the relevant time when
corroborated by circumstances indicating authorship.
Pa.R.E. 901(b)(11) and comment.2
Importantly, “[t]he proponent of digital evidence is not required to prove
that no one else could be the author. Rather, the proponent must produce
sufficient evidence to support a finding that a particular person or entity was
the author.” Id. at comment. Circumstantial evidence sufficient to
authenticate digital evidence “may include self-identification or other
distinctive characteristics, including a display of knowledge only possessed by
the author.” Pa.R.E. 901 at comment. Moreover, “[c]ircumstantial evidence of
ownership, possession, control, or access to a device or account alone is
insufficient for authentication,” but such evidence may be enough “in
combination with other evidence of the author’s identity.” Id. The
authentication of digital messages “turns upon the depth of direct and
circumstantial evidence of authorship marshaled by the proponent” of the
messages. Commonwealth v. Orr, 255 A.3d 598, 601 (Pa.Super. 2021).
In Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), affirmed
by equally divided court, 106 A.3d 705 (Pa. 2014), the trial court found the
Commonwealth presented sufficient evidence to authenticate text messages
as being sent by the appellant. There, a police detective testified he
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2 Pa.R.E. 901(b)(11) became effective on October 1, 2020. It is consistent
with the case law addressing authentication of digital evidence that existed at
the time of its enactment. See Commonwealth v. Orr, 255 A.3d 598, 601
n.3 (Pa.Super. 2021).
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transcribed the text messages, but “acknowledged that he could not confirm
that [the a]ppellant was the author of the text messages and that it was
apparent that she did not write some of the messages.” Id. at 1005. We
concluded the court erred, reasoning “the detective’s description of how he
transcribed the text messages, together with his representation that the
transcription was an accurate reproduction of the text messages on [the
a]ppellant’s cellular phone, is insufficient for purposes of authentication where
the Commonwealth concedes that [the a]ppellant did not author all of the text
messages on her phone.” Id. We noted that “[g]laringly absent in this case is
any evidence tending to substantiate that [the a]ppellant wrote the drug-
related text messages” and there was no “contextual clues in the drug-related
text messages themselves tending to reveal the identity of the sender.” Id.
In subsequent cases, this Court has found electronic messages properly
authenticated where contextual clues in the messages connected them to the
defendant, but found messages inadmissible where no evidence connected the
defendant to the device, account, or messages. Compare e.g., Orr, 255 A.3d
at 601 (finding text messages authenticated where it was the defendant’s
phone and the messages referenced a domestic custody dispute between
himself and the recipient of the messages); Commonwealth v. Murray, 174
A.3d 1147, 1157 (Pa.Super. 2017) (finding messages authenticated where
phones were in the defendant’s possession and the messages’ content,
“regarding the sender’s expectation that he might be getting locked up that
day, and alluding . . . to an item taken from the bully, is consistent with the
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events and chronology of [the defendant] being ordered to report to his parole
agent” earlier that day and the defendant’s description of the incident where
he acquired the gun), with, e.g., Commonwealth v. Mangel, 181 A.3d
1154, 1164 (Pa.Super. 2018) (finding Facebook posts and messages not
authenticated where there was no evidence the defendant created the
Facebook account, authored the chat messages, or posted the photograph of
bloody hand and there were no contextual clues in the chat messages that
identified the defendant as the sender of the messages); Commonwealth v.
Mosley, 114 A.3d 1072, 1183 (Pa.Super. 2015) (finding the messages not
authenticated, reasoning “there is no evidence, direct or circumstantial,
tending to substantiate that Mosley was the author of the drug-related text
messages,” “no testimony was presented from persons who sent or received
the text messages,” and although “there may be contextual clues with regard
to some texts, (i.e., one of the text messages is from Mosley’s mother on July
26, 2012, just 18 days before his arrest, wishing Mosley a happy birthday),
there are no such clues in the drug-related texts messages themselves tending
to reveal the identity of the sender”).
Here, the trial court found the Facebook posts admissible, reasoning
that authorship by Johnson was established through contextual clues in the
four messages:
In the instant matter, we believe that there is sufficient
circumstantial evidence and contextual clues in the subject
threatening Facebook posts, especially the third and fourth
posts, which tend to reveal the identity of the author as
[Johnson]. The third Facebook post, read by Officer Leitzell
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on the witness stand, stated: “I’m going to stick this knife
straight through his heart. I can understand why I can’t kill
Abel.” This language is entirely consistent with the words
and actions of [Johnson] at the time that officers
encountered him on the date in question. Specifically, in his
encounters with the officers, [Johnson] repeatedly utilized
the same Cain and Abel reference that is used in the third
Facebook post. Moreover, the threat in the Facebook post
to “stick this knife straight through his heart” is consistent
with [Johnson’s] other threats to stab his brother on the
date in question.
The fourth Facebook post contains similar contextual clues
suggesting that [Johnson] is the author of the post. That
post read: “Give me - give me ya’ll, forgive me right now I
think I’m about to kill my brother. Yeah, I’m drinking, but
I’m not drunk, and I know what it’s like to be fucked over.”
As can be seen, the fourth Facebook post again contains a
reference to killing the author’s brother, which is consistent
with [Johnson’s] other threats towards his brother on the
date in question. Moreover, the fourth post contains a
reference to drinking and a reference to being “fucked over.”
The reference to drinking is consistent with the officer’s
observations of [Johnson] on the date in question, as
[Johnson] was observed to be drinking whiskey when the
officers approached him in his car. As for the Facebook
post’s reference to the author being “fucked over”, this is
consistent with the fact that on the date in question,
[Johnson] believed that he was being wronged by being
kicked out of Larry’s house and by not being paid enough
money for the construction work that he did on the house.
Thus, because there was sufficient circumstantial evidence
and contextual clues in the subject Facebook posts to
establish [Johnson] as the author of the posts, this Court
did not err in allowing the text of these posts to be
introduced into evidence through the recitation of Officer
Leitzell.
1925(a) Op. at 6-7.
The trial court did not abuse its discretion in concluding the
circumstantial evidence sufficiently established Johnson was the author of the
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Facebook posts. Unlike in Koch and subsequent cases where the
Commonwealth presented no or insufficient evidence of authorship, here
Johnson’s language used in his conversations with police officers on the day
in question mirrored the language used in the Facebook posts. The court’s
decision was not manifestly unreasonable or the product of partiality,
prejudice, bias, or ill will. See Rogers, 250 A.3d at 1215.
In his second issue, Johnson argues the court erred in refusing to
instruct the jury on the principles of transitory anger, alleging that the
terroristic threats statute “is not intended to penalize ‘mere spur-of-the-
moment’ threats which result from anger.” Johnson’s Br. at 17 (quoting 18
Pa.C.S.A. § 2706, official comment). He argues the proposed instruction
included citation to four cases in support and was included in the comment to
the statute. He claims that because the jury charge did not include the
transitory anger principle, it was error. He disputes the trial court’s
determination that there was no basis to characterize the behavior as
transitory. According to Johnson, no testimony pinpointed the timing of the
Facebook posts to the statement Larry heard while mowing the lawn, and they
“all could have occurred within less than a minute.” Id. at 28.
When reviewing a trial court’s decision regarding jury instructions, we
will reverse only where the court abused its discretion or committed an error
of law. Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa.Super. 2018).
This Court’s “key inquiry is whether the instruction on a particular issue
adequately, accurately and clearly presents the law to the jury, and is
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sufficient to guide the jury in its deliberations.” Id. (quoting Commonwealth
v. Hamilton, 766 A.2d 874, 878 (Pa.Super. 2001)). Further, “[t]the trial court
is not required to give every charge that is requested by the parties and its
refusal to give a requested charge does not require reversal unless the
Appellant was prejudiced by that refusal.” Commonwealth v. Sandusky, 77
A.3d 663, 667 (Pa. Super. 2013) (quoting Commonwealth v. Thomas, 904
A.2d 964, 970 (Pa. Super. 2006)). Where the trial court’s instructions track
the Pennsylvania Suggested Standard Criminal Jury Instructions, it is
presumed such instructions are an accurate statement of the law. See
Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa.Super. 2007).
The crime of terroristic threats occurs where a “person communicates,
either directly or indirectly, a threat to . . . commit any crime of violence with
intent to terrorize another[.]” 18 Pa.C.S.A. § 2706(a)(1).
The trial court issued the following jury instruction on terroristic threats:
And the first is terroristic threats. And I know the title of the
charge sort of gives you a certain impression but,
nevertheless, there are details here that the statute covers.
The defendant has been charged with the offense of
terroristic threats. To find defendant guilty of this offense
you must find the following elements have been proven
beyond a reasonable doubt:
First, that the defendant communicated, either directly or
indirectly, a threat which was received by the victim. The
term communicates means that it is conveyed in person or
by written or electronic means, including telephone, email,
internet, et cetera. In other words, communication can be
done by words or deeds conveyed in any manner. A present
ability to inflict harm is not required. There is no
requirement that the harm will actually be carried out.
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The second element is that the defendant communicated the
threat to commit a crime of violence with the intent to
terrorize another. Under the statute prohibiting terroristic
threats it is unnecessary for an individual to specifically
articulate the crime of violence that he or she intends to
commit, or the type of crime may be inferred from the
nature of and the context of or the circumstances
surrounding -- surrounding the utterance as stated, and
thus, direct communication between the defendant and the
victim is not required to establish the crime of terroristic
threats.
N.T., July 20, 2021, at 145-46. This language was almost identical to the
Pennsylvania Suggested Standard Jury Instructions for a terroristic threat
charge. See Pa. Sug. Stand. Crim. Jury Inst. at § 15.2706.
The trial court found the “charge, as a whole, clearly, adequately, and
accurately instructed the jury as to the law on the requisite elements of the
offense of Terroristic Threats.” 1925(a) at 8. It further noted that, because it
tracked the standard instruction, it was presumed to be accurate. The court
further concluded that the failure to include the transitory anger instruction
was not prejudicial because “evidence presented at trial was sufficient to allow
a jury to find, beyond a reasonable doubt, that [Johnson] possessed the intent
to terrorize Larry and that his words constituted more than a ‘spur-of-the-
moment’ threat resulting from transitory anger.” Id. at 9. It noted the
evidence suggested that from the time Johnson and Larry started arguing until
the police took Johnson into custody hours later, Johnson made threats on
Larry’s life “both verbally in earshot of Larry, and in a sustained series of social
media posts.” Id.
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The trial court did not abuse its discretion when instructing the jury as
to terroristic threats. The instruction used language that closely tracked the
standard instruction, and therefore is presumed accurate. Further, the
instruction clearly, adequately, and accurately instructed the jury as to the
elements of the crime. The decision whether to include a transitory anger
charge was within the court’s discretion, and its decision to not issue such a
charge was not an abuse of that discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/2022
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