Commonwealth v. Simmons

DISSENTING OPINION BY

WECHT, J.

Ernest Simmons [“Appellant”] made threats against Derek Henderson [“Henderson”] that were never communicated to Henderson. Instead, the threats were voiced only to third parties while Appellant was in the hospital. The majority concludes that those threats, albeit unknown to Henderson, constituted as-saultive behavior against Henderson which violated Appellant’s probation.

Appellant’s statements constituted repugnant behavior, not assaultive behavior. As a matter of law, Appellant could not lawfully be sentenced to prison for the former. I respectfully dissent.

In finding that Appellant’s threats were assaultive behavior, the majority relies on a sparsely written and thinly reasoned decision of the Commonwealth Court: Malarik v. Pa. Bd. of Probation & Parole, 25 A.3d 468 (Pa.Cmwlth.2011). The majority cites Malarik for the proposition that an intended victim need not be aware of a threat for the speaker to be found in violation of probation for engaging in assaultive behavior. In Malarik , the appellant drafted and distributed letters that solicited funds to hire someone to kidnap and kill a judge. Id. at 469 . The judge did not learn of the letters directly from Malarik. Id. at 470 . The Commonwealth Court held that a threat can place a person in reasonable apprehension of bodily harm even if that threat is not communicated “first hand” to the intended victim. Id.

I disagree with the majority’s reliance on Malarik , because that case’s disposition is less than clear. The Commonwealth Court’s use of the term “first hand” sug *1288 gests that, although Malarik did not make this threat directly to his intended victim, that intended victim did, at some point, become aware of the threat. This inference harmonizes Malarik with the Commonwealth Court’s previous decision in Jackson v. Pa. Bd. of Probation & Parole, 885 A.2d 598, 601 (Pa.Cmwlth.2005), which had required “reasonable apprehension of bodily harm.”

Unfortunately, the Malarik opinion fails to reveal how the judge became aware of the threats. The opinion stated that, “even without” the judge’s testimony, it was clear that the threats would place any one in reasonable apprehension of bodily harm. The “even without” statement could mean that the judge testified, but that his testimony was not necessary to the determination that Malarik engaged in assaultive behavior. The “even without” language also could mean that the determination was being made without the judge having testified. The Ma-larik Court’s sparse factual and procedural history, as well as the lack of clarity articulated in the bases for the court’s determination in that case, undermines the Commonwealth’s argument, and the majority’s holding in this case, that Malarik stands for the proposition that the intended victim need not be aware of the threat.

In the instant case, Appellant threatened to kill Henderson. However, as the Commonwealth concedes, that threat was never communicated to Henderson. The Commonwealth stipulates that none of Appellant’s threats were relayed to Henderson by Brant, Wilson, Miller, or Henry. N.T., 2/17/11, at 4. 4 This distinguishes the case from the others that have interpreted assaultive behavior. For example, in Moore v. Pa. Bd. of Probation & Parole, 95 Pa.Cmwlth. 531 , 505 A.2d 1366 (1986), the letters and phone calls threatening to slash, mutilate, and rape the victim were sent and made directly to the intended victim. Also, in Dunkleberger v. Pa. Bd. of Probation & Parole, 132 Pa. Cmwlth. 600, 573 A.2d 1173 (1990), the appellant made his threat to kill his former girlfriend if anything happened to their unborn baby directly to the former girlfriend. While Malarik presents a closer case, it appears that the intended victim there received the threat, albeit indirectly. By contrast, the record before us does not establish that Henderson had any knowledge whatsoever of the threat made against him. As a matter of law, and as a matter of common sense, a person cannot be placed in reasonable apprehension of bodily harm by a threat of which he or she is unaware.

While assaultive behavior encompasses more than criminal behavior, the intended victim must know of the threat before he or she can be placed in fear. To constitute assaultive behavior, that behavior must “ ‘clearly evoke[ ] a reasonable apprehension of bodily harm’ in the person assaulted.” Jackson, 885 A.2d at 601 (quoting Moore, 505 A.2d at 1367 ) (emphasis added). This definition speaks to the intended victim, and not to the person making the statement. Otherwise, under the majori *1289 ty’s expansive interpretation, it would be a violation of probation (and a ticket to state prison) if a probationer, watching a Steel-ers game and upset with a call, stated that he was going to kill the referee. Surely, that cannot be what our law contemplates when it prohibits assaultive behavior.

Had the threat been communicated to Henderson, he may well have been placed in reasonable apprehension of bodily harm. But that did not happen here. The evidence was insufficient to demonstrate that Appellant violated his probation. Therefore, I dissent. Moreover, because I find the evidence insufficient to show that Appellant engaged in assaultive behavior, I would not reach his remaining issues on appeal.

. The Commonwealth asserts that Henderson was interviewed by a police detective. N.T., 2/17/11, at 4. The record does not tell us when any such interview occurred or what may have been communicated to Henderson by the detective who interviewed him. There is no evidence of record regarding the police interview. As Appellant was detained the day after he made the statements to Wilson, it can be presumed that Henderson was interviewed after Appellant already was in custody. Without testimony from Henderson or the officer who interviewed him, there is no record evidence allowing us to speculate that Henderson knew of the threat. The Commonwealth does not now argue that Henderson knew of the threat. Rather, the Commonwealth maintains that, based on Ma-larik, Henderson's knowledge is irrelevant.