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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MATTHEW J. ZINSER

                            Appellant                 No. 707 MDA 2016


             Appeal from the Judgment of Sentence April 12, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004820-2015


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 09, 2017

        Matthew J. Zinser appeals from the judgment of sentence imposed on

April 12, 2016, in the Court of Common Pleas of Dauphin County.          A jury

found Zinser guilty of terroristic threats and criminal mischief. 1     On the

charge of terroristic threats, the trial court sentenced Zinser to not less than

9 months nor more than 23 months with immediate eligibility for work

release.    On the charge of criminal mischief, the trial court imposed a

concurrent term of 12 months’ county probation.       The sole issue raised in



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  See 18 Pa.C.S. §§ 2706(a)(1), and 3304(a)(2), respectively. The jury
found Zinser not guilty of simple assault, 18 Pa.C.S. § 2701(a)(1).
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this appeal is a challenge to the sufficiency of the evidence to sustain the

conviction for terroristic threats. Based upon the following, we affirm.

      The trial court summarized the evidence presented at trial, as follows:

      The Commonwealth’s first witness was Andrea Todd (“victim”).
      Ms. Todd testified to her current relationship with [Zinser] and
      that they are engaged.3
      ___________________________
          3
            Transcript of Proceedings, Jury Trial, March 15-17,
          2016, page 24 (hereinafter, “N.T. ___”).
      ___________________________



      On the date of the incident Ms. Todd, [Zinser], and her daughter
      were all living at the same house. (N.T. 25) The incident started
      on the night of July 3[, 2015,] continuing until the morning of
      July 4, 2015[,] when only Ms. Todd and [Zinser] were in the
      house. (N.T. 25-26) Ms. Todd testified that she came home
      from work around 9 [p.m.] and started drinking. (N.T. 26)
      [Zinser] came home from work around 11 or 12 [p.m.] and
      started drinking. (N.T. 26) Ms. Todd and [Zinser] got into an
      argument, but Ms. Todd could not remember the reason for the
      argument. (N.T. 27) The argument started in the living room
      and was at this point only verbal, but then later turned physical
      in the bathroom. Ms. Todd relayed the following about the
      incident:

          We were arguing over what we were arguing over, and he
          kind of just, you know, -- I kind of, like, got in his face.
          And he kind of, like got me out of the way and then, like,
          said something threateningly, but didn’t like, actually
          threaten to do anything. Just said, like, what he could
          do, which you know, like –

          (N.T. 27)

      Ms. Todd clarified that she got in his face by going towards him
      in an argumentative way. (N.T. 28) When asked if, during this
      altercation, [Zinser’s] body had any contact with hers, Ms. Todd
      explained that [Zinser] and she just bumped into each other.



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     (N.T. 28-29) Ms. Todd testified that she did not remember giving
     a statement to police.4 (N.T. 28)
     ___________________________
         4
           The audio recording of the statement given by Ms. Todd
         to the Police was introduced as Commonwealth Exhibit 1
         and played for the jury. N.T. 33.
     ___________________________



     Ms. Todd testified that [Zinser] put his hand by her throat in the
     bathroom and that he made a threat of something he could do.
     (N.T. 29) Ms. Todd stated the threat was:

         Like, I could just kill you, but, like, saying that in just,
         like, an angry way; not, like, actually with intent; just
         saying it. Like stuff people say when they get mad, not
         like an actual threat to do it.

         (N.T. 29)

     After the bathroom incident, Ms. Todd went to bed around 12:30
     or 1 [a.m.] but she is not certain due to intoxication. (N.T. 30)
     Ms. Todd stated she was awakened by [Zinser] attempting to get
     her phone from underneath her pillow. (N.T. 30) A struggle
     ensued in which [Zinser] refused to return the phone instead
     asking for the passcode which Ms. Todd refused to give up.
     (N.T. 31-32) Ms. Todd testified that she got on his back trying to
     get the phone back and that [Zinser] tried to get her off by
     “push[ing] his elbow … push[ing] his forearms back.” (N.T. 32)
     Ms. Todd stated that [Zinser] did not have his hands near her
     neck during this phone incident. (N.T. 32) Ms. Todd testified that
     she left the house following this struggle fearing an escalation
     even though she did not want to leave. (N.T. 34) Ms. Todd went
     to her mother’s house where she explained what happened and
     called the police. (N.T. 35) Ms. Todd confirmed the broken state
     of her phone as well as a photograph of scratch marks on her
     body the date of the incident.5 (N.T. 38)
     ___________________________
     5
        Said photographs were admitted             into   evidence      as
     Commonwealth’s Exhibits 4, 5 and 6.
     ___________________________




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     On cross-examination, Ms. Todd explained that she had
     consumed alcohol, but could not remember the exact amount,
     and had taken ZzzQuil in order to sleep. (N.T. 43) Ms. Todd
     asserted again that she did not remember giving the statement
     to police and that the statement is incorrect involving the
     allegations against [Zinser]. (N.T. 43) There had been a history
     of trust issues relating to infidelity stemming from both sides in
     the relationship. (N.T. 44) Ms. Todd explained her unsuccessful
     attempts to rescind her statement in order to clear the charges
     against [Zinser]. (N.T. 45-46) Ms. Todd confirmed that the
     statement uttered by [Zinser] was “I could just kill you.” (N.T.
     50) Ms. Todd agreed with defense counsel’s characterization of
     the statement as more of a swearing, or a frustration, or almost
     an          “I-hate-you-so-much-I-wish-you-would-just-go-away”
     statement. (N.T. 50) Ms. Todd testified that [Zinser] did not
     threaten or cause her fear. (N.T. 51) Ms. Todd agreed that her
     fear grew from her anger that [Zinser] broke her phone and
     from her fear of an escalation. (N.T. 51)

     The Commonwealth’s second and final witness was Officer
     Steven Wertz, the responding officer to call the 911 call. (N.T.
     58-59) Officer Wertz testified that Ms. Todd’s earlier testimony
     was inconsistent with the statement that she had given on the
     night of the incident. (N.T. 59) Officer Wertz responded to Ms.
     Todd’s mother’s residence, after listening to Ms. Todd, Officer
     Wertz went to Ms. Todd and [Zinser’s] residence. (N.T. 59-61)
     Officer Wertz observed redness and scratches on both sides of
     Ms. Todd’s neck. (N.T. 60) Officer Wertz and his fellow officer
     found [Zinser] sleeping and lethargic and arrested him
     thereafter.   (N.T. 62) After the arrest, Officer Wertz had
     recorded an audio of Ms. Todd recounting the incident. (N.T. 63)
     On cross-examination, defense counsel clarified with Officer
     Wertz three separate incidents of physical contact between Ms.
     Todd and [Zinser] that Ms. Todd described in the recorded
     statement. (N.T. 64-68)

     The Defense’s first witness was Deborah Blackstock, the mother
     of [Zinser]. (N.T. 80) Ms. Blackstock testified to conversations
     between herself and Ms. Todd after the incident. (N.T. 82) The
     conversations included a description of the events that were
     inconsistent with the recorded statement by police. (N.T. 84)
     Finally, Ms. Blackstock testified to her belief that after the phone
     conversation, Ms. Todd went to the police station in order to
     have the charges dropped. (N.T. 87) On cross-examination, Ms.

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       Blackstock stated that she was not present anytime during the
       incident and did not accompany Ms. Todd on her trip to the
       police station. (N.T. 88)

       The Defense’s last witness was [Zinser]. [Zinser] testified to
       trust issues related to infidelity in his and Ms. Todd’s
       relationship. (N.T. 90-91) [Zinser] proceeded to give his version
       of the incident starting with an argument in the living room.
       (N.T. 93) [Zinser] says that he did not put his hands on Ms.
       Todd’s throat or physically pinned her against the couch (N.T.
       95). Waking up from a dream about Ms. Todd cheating, [Zinser]
       goes into the bedroom to take Ms. Todd’s phone. (N.T. 95)
       [Zinser] then goes into the bathroom so as to avoid waking her
       up. (N.T. 95-96)       Ms. Todd awakens and comes into the
       bathroom, asking for the phone back. (N.T. 96) [Zinser] took
       responsibility for destroying the phone by running it under water
       then throwing it on the ground thereafter. (N.T. 97) [Zinser]
       says that the physical contact between himself and Ms. Todd
       consisted of him keeping the phone away from Ms. Todd. (N.T.
       98) [Zinser] testified that Ms. Todd took a good half hour getting
       dressed and pacing before leaving. (N.T. 100-01) Finally,
       [Zinser] testified that [Zinser] never choked, punched, or
       slapped Ms. Todd during the entire encounter. (N.T. 101) On
       cross-examination, Commonwealth confirmed the timeline of
       [Zinser’s] testimony. (N.T. 101-02) Commonwealth concluded
       by asking about Ms. Todd’s testimony that she had left right
       after the bathroom incident which runs inconsistent with
       [Zinser’s] testimony that she took 30 minutes before leaving.
       (N.T. 102-03) [Zinser] responded to this inconsistency by stating
       Ms. Todd was a liar. (N.T. 103)

Trial Court Opinion, 8/8/2016, at 2-5.

       As stated above, the jury convicted Zinser of terroristic threats and

criminal mischief. Following sentencing, Zinser filed this timely appeal. 2



____________________________________________


2
 Zinser timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.



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     Zinser claims the evidence was insufficient to sustain his conviction for

terroristic threats because “[t]he Commonwealth failed to prove [Zinser’s]

intent to terrorize another, where the statement was communicated in the

course of a heated argument.” Zinser’s Brief at 9.

         Our standard of review is well settled.

         In reviewing the sufficiency of the evidence, we must
         determine whether the evidence, and all reasonable
         inferences deducible therefrom, viewed in the light most
         favorable to the Commonwealth as verdict winner, are
         sufficient to establish all of the elements of the offenses
         beyond a reasonable doubt.

Commonwealth v. Martinez, ___ A.3d ___, ___ [2016 Pa. Super. 309] (Pa.

Super. 2016) (citation omitted).

     Under Section 2706 of the Crimes Code, a person commits the crime

of terroristic threats “if the person communicates, either directly or

indirectly, a threat to: … commit any crime of violence with intent to

terrorize another[.]” 18 Pa.C.S. § 2706(a)(1).

     For a defendant to be convicted of terroristic threats,

         “the Commonwealth must prove that 1) the defendant
         made a threat to commit a crime of violence, and 2) the
         threat was communicated with the intent to terrorize
         another or with reckless disregard for the risk of causing
         terror.” Commonwealth v. Tizer, 454 Pa. Super. 1, 684
A.2d 597, 600 (1996). “Neither the ability to carry out
         the threat, nor a belief by the person threatened that the
         threat will be carried out, is an element of the offense.”
         In re J.H., 2002 Pa. Super. 108, 797 A.2d 260, 262 (Pa.
         Super. 2002). “Rather, the harm sought to be prevented
         by the statute is the psychological distress that follows
         from an invasion of another’s sense of personal security.”
         Tizer, 684 A.2d at 600.

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Commonwealth v. Beasley, 138 A.3d 39, 46 (Pa. Super. 2016), appeal

denied, __ A.3d ___ (Pa. 2016), citing Commonwealth v. Reynolds, 835
A.2d 720, 730 (Pa. Super. 2003).

        The Official Comment to Section 2706 explains: “The purpose of this

section 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 Comment.          “[T]he real issue [i]s whether

the Commonwealth presented sufficient evidence to establish the required

mens rea, not whether [Appellant] made the statements in the context of a

heated discussion. Being angry does not render a person incapable of

forming the intent to terrorize.” Commonwealth v. Walker, 836 A.2d 999,

1001 (Pa. Super. 2003). We examine the totality of circumstances to

determine if appellant had the necessary mens rea. See Commonwealth

v. Reynolds, supra, 835 A.2d at 730.

        Here, Zinser maintains his statement was the result of “transitory

anger”3 and therefore is not subject to criminal liability. Zinser argues:

        [Zinser], while inebriated, reacted to an emotionally charged
        situation, and blurted out a statement for the purpose of
        expressing frustration.    The context surrounding [Zinser’s]
        communication can be described as nothing other than a ‘spur-
        of-the-moment’ frustration, where the testimony presented was
____________________________________________


3
    Zinser’s Brief at 19.



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     that [Zinser’s] anger was transitory. See [Commonwealth v.]
     Fenton[, 750 A.2d 863 (Pa. Super. 2000)].            Ultimately,
     testimony presented showed that the tempers of both parties
     had flared, but that the anger was merely transitory, as
     evidenced by the fact that the argument was over within an hour
     of it having begun, as Ms. Todd was in bed by “12:30, 1 o’clock”
     [N.T., p. 30], as was [Zinser]. [N.T. p. 99]

     The transitory nature of [Zinser’s] anger was evidenced by the
     fact that he was not the initiator of the dispute, as well as the
     short duration of the dispute, and also the fact that although
     tempers were high, [Zinser] was ultimately able to remove
     himself from the situation and go to sleep.          Furthermore,
     reviewing the testimony from the Commonwealth’s own witness,
     [Zinser] uttered the communication, “I could just kill you,” not
     with intent to terrorize Ms. Todd, but rather, “saying it in just …
     an angry way; not … actually with intent; just saying it. Like
     stuff people say when they get mad, not like an actual threat to
     do it.” [N.T., p. 29].

     In addition, unlike the fact pattern in Fenton, [Zinser’s]
     utterance was clearly not the result of a reflective decision, but
     rather would best be described as a breach of the peace. ….

Zinser’s Brief at 17–18. In addition, Zinzer favorably compares his case to

Commonwealth      v.   Kidd,   442 A.2d 826   (Pa.   Super.   1982),   and

Commonwealth v. Sullivan, 409 A.2d 888 (Pa. Super. 1979), and

distinguishes Commonwealth v. Fenton, 750 A.2d 863 (Pa. Super. 2000).

We are not persuaded by Zinser’s argument.

     Kidd involved a defendant arrested for public drunkenness. As he was

being treated in the emergency room, and with his hands handcuffed behind

his back, the defendant shouted obscenities and yelled that he was going to

kill the police, specifically saying he would machine gun them if given a

chance. 442 A.2d at 827. On appeal, this Court held there was “insufficient


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evidence that appellant, by his acts, intended to place the officers in a state

of fear that agitates body and mind.” Id.      See also Commonwealth v.

Walker, supra, 836 A.2d at 1002 (“The defendant’s statements in Kidd

exemplify the sort of hyperbole from which the jury cannot properly infer,

beyond a reasonable doubt, either an intent to terrorize or reckless

disregard of the risk of causing terror.”).

      In Sullivan, the defendant telephoned the State Police Barracks,

asking a trooper be sent to investigate his claim that the Sheriff of the

County had assaulted the defendant’s father. Frustrated by the delay in the

response, the defendant telephoned the barracks again and said, “If you

don’t want to send anybody down here, I have a .30-30 rifle and I’ll come up

there and blow that son of a bitch’s head off.” 409 A.2d at 888-889. The

next morning the defendant encountered the Sheriff on the street by chance

and during a loud verbal confrontation the defendant again threatened to kill

the Sheriff.   Id. at 889.   The defendant was convicted of two counts of

terroristic threats. On appeal, this Court reversed, finding that the

defendant’s threats were the product of his angry and agitated emotional

state of mind, and that the record contained “no evidence that appellant, by

his acts, intended to put the Sheriff into a state of ‘extreme fear or fear that

agitates body and mind[,]’ …, and thus did not possess the ‘intent to

terrorize’ required for conviction under section 2706.”        Id. at 889-890

(citation omitted).


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      In contrast, in Fenton, the defendant, who was angry over an

insurance claim, called Mr. Leventry, his insurance adjuster, and threatened

to kill him and others during a seven to ten minute phone conversation.

      [The defendant] stated he had a gun and bullets and was going
      to start killing people, that he would kill the people at Laurel
      Ford, where his truck was being repaired, that he was “going to
      shoot [Congressman] Murtha’s fucking head off” and would
      “shoot Mr. Hugya’s [Congressman Murtha’s aide] fucking head
      off.” He stated he was going to the Tribune-Democrat, a local
      newspaper, with guns blazing, that he would kill all the Erie
      Insurance employees, that Mr. Leventry should keep his doors
      locked, and that he would kill until he was killed himself.
      [Defendant] stated Congressman Murtha and Hugya were
      conspiring with Erie Insurance and the newspaper to ruin him,
      that Murtha had stolen his ideas for the economic recovery of
      Johnstown and was planning to have appellant killed or cause
      him to commit suicide. [The defendant] said the government
      was against the people, who had to take things into their own
      hands, that Timothy McVeigh was his hero, and that if the
      government declared war on him, he would take a body count.
      He told Mr. Leventry to keep his doors locked, because he “didn’t
      know what might happen if this thing got started,” and that it
      may not happen today or tomorrow, but it would happen.
750 A.2d at 864-65.       This Court concluded that these statements were

sufficient to uphold the defendant’s conviction for terroristic threats.

      The Fenton Court reasoned the situation had been festering over

several months, and the defendant had spent a long time reflecting upon his

problems. This Court found the statements to be “premeditated and

deliberate … and the sweeping choice of those threatened [was] not

reflective of any “spur-of-the-moment” frustration.” Id. at 865. Rather, the

threats, which went beyond Mr. Leventry and the insurance claim, “were

neither transitory nor unthinking.” Id.

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       Based on our review of the record before this Court, 4 we find that the

present case aligns with Fenton. As the trial court explained:

       The testimony of Ms. Todd established that there was a violent
       escalation of an argument that was recurrent in the relationship.
       Ms. Todd testified that, while in the bathroom, [Zinser] had his
       hands by her throat when he uttered the threat, “I could just kill
       you.”     The body positions of [Zinser] and Ms. Todd in
       conjunction of the content of the threat allowed the jury to find
       that [Zinser] harbored the requisite intent to terrorize Ms. Todd.
       Looking to [Zinser’s] testimony, even though the sequence of
       events is inconsistent between the two testimonies, [Zinser]
       referenced his dream about Ms. Todd’s infidelity as motivation
       for his actions to take the phone. The jury could deduce that
       because the problems (trust issues relating to infidelity) leading
       to the incident were present in the relationship before the night
       of the incident, [Zinser] had the requisite intent to terrorize Ms.
       Todd. This inference is similar to an inference that the Superior
       Court found reasonable in its decision in Fenton, explaining that
       anger does not render a person incapable of forming intent and
       due to the “festering anger” there was sufficient evidence for a
       jury to find the requisite mens rea. 750 A.2d at 865-866.

Trial Court Opinion, 8/8/2016, at 7 (emphasis omitted). In addition, the trial

court rejected characterization of Zinser’s statement as a “mere spur of the

moment threat which resulted from anger.” Id. at 8. The trial court opined:

“Due to the recurring nature of the argument, in regards to infidelity,

between [Zinser] and Ms. Todd, a jury could infer that this was not just a
____________________________________________


4
  The electronically filed certified record in this case includes the trial court
record, jury trial and sentencing transcripts, and the trial court’s opinion.
The electronic record does not include the audio recording of the statement
given by Ms. Todd, Commonwealth Exhibit 1, or photographs,
Commonwealth’s Exhibits 4, 5, and 6. However, as will be discussed, the
testimony presented by the Commonwealth at Zinser’s jury trial
demonstrates sufficient evidence to sustain Zinser’s conviction for terroristic
threats.



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spur-of-the-moment utterance but coming from a place of familiar feeling.”

Id. We agree with the trial court’s analysis.

      The evidence of record belies Zinser’s position that the evidence was

insufficient to demonstrate his intent to terrorize Ms. Todd.        Ms. Todd

testified Zinser put his hands by her throat while uttering the words, “I could

just kill you.”   N.T., 3/15-17/2016, at 29.    Later, according to Ms. Todd’s

testimony, Zinser took her phone and broke it. See id. at 30–31. Ms. Todd

left the apartment and went to her mother’s house. Id. at 34–35. After she

got to her mother’s house, she called police.         Id. at 35.    On cross-

examination, Ms. Todd testified that in July of 2015 there were “trust issues

going on” in the parties’ relationship. Id. at 44.   On re-direct examination,

Ms. Todd answered affirmatively that she called 9-1-1 and “said [she had

been] viciously attacked and he [Zinser] tried to kill her.”   Id. at 55. The

responding officer testified he observed redness and scratches on both sides

of the neck, and a scratch on the inside of her right bicep. Id. at 60. Zinser

also admitted that he and Ms. Todd had “an on-going issue … about trust

issues.” Id. at 91. He testified on the night of the incident he awoke from a

dream that Ms. Todd was “cheating.” Id. at 95.

      Applying our well established standard of review, and guided by the

above-discussed case law, we conclude the Commonwealth’s evidence,

under the totality of the circumstances, was sufficient to support the jury’s

determination that Zinser acted in violation of 18 Pa.C.S. § 2706(a)(1).


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Here, Zinser uttered a threat to commit a crime of violence, positioned his

hands by Ms. Todd’s neck, and confirmed his intent to terrorize by breaking

her phone.    Ms. Todd fled from the apartment to her mother’s home and

called police to report the incident. Zinser’s sufficiency challenge based on

his claim that his utterance was “spur of the moment” anger fails in light of

this evidence and evidence that trust issues were festering in the parties’

relationship. Accordingly, we affirm.

      Judgment of sentence affirmed.

      Judge Dubow joins in this memorandum.       Judge Platt concurs in the

result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




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