Opinion
J-A11013-17 No. 1469 MDA 2016
06-05-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. SEAN M. DONAHUE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 19, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003716-2015 BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E. MEMORANDUM BY SHOGAN, J.:
Former Justice specially assigned to the Superior Court.
Sean M. Donahue ("Appellant") appeals from the judgment of sentence entered in the Court of Common Pleas of Dauphin County on April 19, 2016, following his conviction for two counts of harassment. The judgment of sentence was made final by the August 30, 2016 order denying Appellant's post-sentence motion. After careful review, we affirm.
The trial court opinion related the factual background and procedural history, which we adopt for purposes of this appeal. Trial Court Opinion, 11/9/16, at 1-4. In brief summary, on January 12, 2015, Appellant was charged with one count of terroristic threats and two counts of harassment for allegedly e-mailing threats to various Commonwealth employees. On April 18, 2016, a jury trial commenced. The jury was hung as to the terroristic-threats charge, but it found Appellant guilty of the two harassment charges. Subsequently, the district attorney nol prossed the terroristic-threats charge.
18 Pa.C.S. §§ 2706 and 2709(a)(4), respectively.
At trial, four e-mails, each sent to roughly fifty individuals between November 26, 2014, and November 29, 2014, were entered into evidence. Witnesses Lisa Sauder and Mary Jane McMillan both received courtesy copies ("cc") of the e-mails. Generally, the nature of the communications concerned Appellant's grievances and perceived injustices carried out by Commonwealth employees related to his unsuccessful applications for employment and his preferred status as a veteran. While the trial court opinion quotes the e-mails in detail, for our purposes, we observe that Appellant used the following language in his communications to the e-mail recipients - "I will pursue punishment of you"; "[t]hat is a threat"; "You won't have to explain to a judge how you rectify me having spent so much money on civil court actions instead of just buying a $200 gun and $20 box of ammunition and killing your employees, like they accuse me of having . . . a propensity towards"; and "I hope all of you suffer terrible tragedies." N.T., 4/19/16, at 22, 28, 36, 44; Commonwealth Exhibits 1-4.
At trial, Ms. Sauder testified that while she had communicated via e-mail with Appellant over a period of years, his tone had changed, and she became alarmed after receiving the subject e-mails. N.T., 4/19/16, at 20-21. Ms. Sauder stated that she had never received e-mails referencing guns and that she was afraid. Id. at 34. She characterized the tone of the e-mails as "extremely angry," expressing "a potential to do harm." Id. at 45. Ms. McMillan also testified that she was alarmed after receiving the e-mails and was concerned enough to notify her supervisor's boss. Id. at 73.
As noted, on April 19, 2016, a jury found Appellant guilty of two counts of harassment. On that same date, the trial court sentenced Appellant to two consecutive terms of one-year probation. Appellant filed a post-sentence motion that was denied by operation of law pursuant to Pa.R.Crim.P. 720 (B)(3)(a).
Appellant raises the following issues for review:
I. Was not the evidence insufficient to support [Appellant's] conviction for harassment, 18 Pa.C.S. § 2709(a)(4), where [Appellant's] language cannot be construed as "true threats" and is therefore protected speech under the United States and Pennsylvania Constitutions?Appellant's Brief at 5 (full capitalization omitted).
II. Was it not a violation of [Appellant's] double jeopardy rights for the court to impose separate sentences for two counts of harassment, 18 Pa.C.S. § 2709(a)(4), where the two counts were redundant statements of the very same conduct?
Initially, Appellant submits that in reviewing his sufficiency argument, this Court should employ an "independent review" standard because his challenge is based upon the exercise of his First Amendment rights. Appellant's Brief at 19. The authority cited for the suggestion that we should not employ the general deferential sufficiency-of-the-evidence scrutiny is not persuasive; nonetheless, because Appellant's issue concerns a question of law, our review is de novo. In re Fiedler , 132 A.3d 1010, 1018 (Pa. Super. 2016).
Appellant was convicted of two counts of harassment under 18 Pa.C.S. § 2709(a)(4), which states:
(a) Offense defined.--A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:
* * *
(4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures;
Appellant's challenge to the sufficiency of the evidence is based on his premise that his words cannot be construed as "true threats"; therefore, his conduct was protected speech under the United States and Pennsylvania Constitutions. See Commonwealth v. Baker , 722 A.2d 718, 721-722 (Pa. Super. 1998) (en banc) (defining "true threat" as one which "on its face and in the circumstances in which it is made is so unequivocal, unconditionally immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution") (citation omitted).
Appellant's argument that none of the language included in the e-mails indicates a specific threat of violence is unavailing. In his first e-mail, Appellant stated that he was "pursuing punishment" of Commonwealth employees. In the second e-mail, he used violent imagery as an alternative to accessing the courts for the relief he felt was due. Finally, although in his fourth e-mail Appellant couched his language to infer that he would only resort to legal means to redress his grievances, he wished "terrible tragedies" on the recipients and referenced the formation of a militia of similarly frustrated citizens. N.T., 4/19/16, at 22, 28, 44; Commonwealth Exhibits 1, 2, and 4.
Appellant cannot credibly argue that his free speech rights were in any way infringed in this matter. While Appellant is free to express his disagreement with the Commonwealth employees concerning his dissatisfaction with state policies, he is not empowered to threaten the employees with reference to guns, ammunition, and militia, veiled though they may be. We agree with the trial court that "this type of behavior is exactly the type of behavior that the harassment statute is meant to prohibit" and adopt its reasoning in concluding that sufficient evidence supports Appellant's conviction. Trial Court Opinion, 11/9/16, at 6.
Appellant next claims that his right against double jeopardy was violated when the trial court imposed two separate sentences for two counts of harassment. Specifically, Appellant contends that his conviction for two counts of harassment violates the prohibition against multiplicity, i.e., the charging of multiple counts for a single criminal offense.
"No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense." 42 Pa.C.S. § 9765.
We affirm the trial court's decision in this regard based upon its well-reasoned response to this assertion: "Appellant wrote three distinct e-mails each of which could independently fulfill the elements of harassment as charged. . . . Each e-mail contained different statements so that this was not just a single criminal act." Trial Court Opinion, 11/9/16, at 7.
The e-mail sent on November 29, 2014, is a duplicate of the e-mail sent on November 28, 2014. N.T., 4/18/16, at 28, 36; Commonwealth Exhibits 2, 3. --------
Accordingly, for the above-stated reasons and after careful review of the parties' arguments and the certified record, we affirm.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/5/2017
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