J-S32041-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ADAM BUTLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 345 EDA 2020

Appeal from the PCRA Order Entered January 16, 2020,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0001557-2015, 

CP-51-CR-0001558-2015.

COMMONWEALTH OF PENNSYLVANIA

v.

ADAM BUTLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 346 EDA 2020

Appeal from the PCRA Order Entered January 16, 2020,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0001557-2015, 

CP-51-CR-0001558-2015.

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 21, 2020

In these consolidated appeals, Adam Butler challenges the order 

denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 

42 Pa.C.S.A. §§ 9541-9546. We affirm.

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* Retired Senior Judge assigned to the Superior Court.
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The trial court summarized the pertinent facts as follows:

Philadelphia Police Officer [Ray] D’Amico testified that he 

was on duty, in uniform, as the recorder in a police vehicle 

on April 13, 2013, in the vicinity of 2500 Page Street in 

Philadelphia. He and his partner . . . stopped a vehicle 

driving the wrong way down Page, a one way street. The 

officers signaled the vehicle to pull over at Bainbridge 

Street. Officer D’Amico approached the passenger side of 

the stopped vehicle, as his partner approached the driver’s 

side. [Butler], who was in the passenger seat produced his 

identification when asked to do so. As his partner did a 

check of the occupants’ identification, [Officer] D’Amico 

remained on the passenger side of [the] vehicle, near 

[Butler].

At some point, [Butler] became agitated and attempted 

to open the vehicle door. Officer D’Amico shined his light 

into the vehicle, at which time [Butler] swung at the officer’s 

flashlight and told him to get the light out of his face. Officer 

D’Amico called his partner over and they removed [Butler] 

from the vehicle and attempted to calm him down. The 

officer placed [Butler] against the wall.

[Butler] proceeded to loudly yell and scream at the 

officers, and bystanders also began to yell and scream to 

the officers that [Butler] was deaf. The officers then 

attempted to place [Butler] under arrest for disorderly 

conduct, but he refused to give them his hands, causing the 

officers to have to hold his arms down to handcuff him. The 

officers called for another vehicle to transport [Butler]. 

[Butler] continued to yell and scream, refusing to walk 

straight or bend down so he could be placed in the police 

car. There were approximately 30 people out on the street. 

Officer [Steven] Toner, who arrived on the scene with his 

partner, in response to a radio call, attempted to control the 

crowd, as [Officer] D’Amico and [his partner] secured 

[Butler].

[Officer] Toner and his partner then transported [Butler] 

in their police vehicle. During this transportation, [Butler] 

made threats to kill the officer, “fuck you up”, and told 

Officer Toner that he had “a target on [his] back.” When 

the officer’s son appeared on his phone screen, [Butler] 
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said: “Is that your child? . . . I’m going to fuck him up, 

too.” When Officer Toner turned to look at [Butler], [Butler] 

said “I’m in your head you [faggot] pussy coward.”

Trial Court Opinion, 12/16/16, at 1-3 (citation omitted).

On October 19, 2016, following a bench trial, Butler was convicted of 

disorderly conduct at CP-51-CR-0001557-2015, and terroristic threats at CP51-CR-0001558-2015. On October 19, 2015, the trial court imposed an

aggregate term of 11⁄2 to 3 years of imprisonment, followed by a two-year 

probationary term. Butler filed a timely appeal to this Court, after his 

appellate rights were reinstated nunc pro tunc. In an unpublished 

memorandum filed on September 6, 2017, this Court affirmed Butler’s 

judgment of sentence, and on February 6, 2018, our Supreme Court denied 

Butler’s petition for allowance of appeal. Commonwealth v. Butler, 178 

A.3d 135 (Pa. Super. 2017), appeal denied, 181 A.3d 290 (Pa. 2018).

On February 8, 2019, Butler filed a timely PCRA petition. The PCRA 

appointed counsel, and PCRA counsel filed an amended petition on April 30, 

2019. The Commonwealth filed a motion to dismiss on September 4, 2019, 

to which Butler filed a response on September 25, 2019. On December 24, 

2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss 

Butler’s petition without a hearing. Butler did not file a response. By order 

entered January 16, 2020, the PCRA court dismissed Butler’s amended 

petition. This timely appeal followed. The PCRA court did not require Rule 

Pa.R.A.P. 1925 compliance.

Butler raises the following issue on appeal:
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1. Did the PCRA court err in dismissing [Butler’s] PCRA 

Petition without a hearing because trial and direct appeal 

counsel were ineffective for not seeking vacation of 

judgment of sentence in relation to [Butler’s] Terroristic 

Threats conviction on sufficiency of the evidence and 

Constitutional grounds?

Butler’s Brief at 4.

This Court’s standard of review regarding an order dismissing a petition 

under the PCRA is to ascertain whether “the determination of the PCRA court 

is supported by the evidence of record and is free of legal error. The PCRA 

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92 

(Pa. Super. 2013) (citations omitted). 

Before addressing the merits of Butler’s issue on appeal, we note that 

Butler may be ineligible for post-conviction relief because it appears he is no 

longer serving a sentence of imprisonment, probation or parole for his 

terroristic threats conviction. See 42 Pa.C.S.A. § 9543(a)(1)(i). As noted 

above, the trial court sentenced Butler on October 19, 2015 to serve 11⁄2 - 3 

years of incarceration and a consecutive two-year probationary term. 

Although the Commonwealth admits that it was “unable to definitively confirm 

[Butler’s] custody status,” based upon its belief that Butler was incarcerated 

since March 2015, he would have completely served his sentence for his 

terroristic threats conviction by March 2020. Commonwealth’s Brief at 7 n.1. 

Thus, even though Butler was serving his sentence at the time he filed his 

PCRA petition, because he has since completed serving his sentence, he would 
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no longer be eligible for post-conviction relief. See Commonwealth v. 

Tinsley, 200 A.3d 104, 107 (Pa. Super. 2018), appeal denied, 208 A.3d 461-

62 (Pa. 2019) (explaining, “As soon his sentence is completed, a petitioner 

becomes ineligible for relief under the [PCRA], regardless of whether he was 

serving his sentence when he filed his petition”). Thus, we could affirm on 

this basis alone.1

Because we are unable to confirm his current status, however, we will 

address the merits of his issue. Butler claims the ineffectiveness of prior 

counsel. When a petitioner alleges counsel’s ineffectiveness in a PCRA 

petition, he must prove by a preponderance of the evidence that his conviction 

or sentence resulted from ineffective assistance of counsel “which, in the 

circumstances of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken 

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Additionally, the petitioner must 

demonstrate:

(1) that the underlying claim has arguable merit; (2) that 

no reasonable basis existed for counsel’s actions or failure 

to act; and (3) that the petitioner suffered prejudice as a 

result of counsel’s error. To prove that counsel’s chosen 

strategy lacked a reasonable basis, a petitioner must prove 

that an alternative not chosen offered a potential for success 

substantially greater than the course actually pursued. 

Regarding the prejudice prong, a petitioner must 

demonstrate that there is a reasonable probability that the 

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1 We additionally note that in presenting his argument, Butler asserts that 

“he served a state sentence for [a] heat of the moment bluster.” Butler’s 

Brief at 12.
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outcome of the proceedings would have been different but 

for counsel’s action or inaction. Counsel is presumed to be 

effective; accordingly, to succeed on a claim of 

ineffectiveness[,] the petitioner must advance sufficient 

evidence to overcome this presumption. 

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal 

citations and quotation marks omitted). Accord Commonwealth v. Pierce,

527 A.2d 913 (Pa. 1987). A failure to satisfy any prong of the test for 

ineffectiveness will require rejection of the claim. Commonwealth v. 

Martin, 5 A.3d 177, 183 (Pa. 2010).

Additionally, we note that, by challenging both trial and appellate 

counsel’s performance, Butler has raised a layered claim of ineffectiveness. 

To prevail on a claim of appellate counsel ineffectiveness for failure to raise 

an allegation of trial counsel ineffectiveness, a PCRA petitioner must present 

a layered claim, i.e., he or she must present argument as to each of the three 

prongs of the Pierce test, which is for determining whether the petitioner has 

overcome the presumption that counsel is effective, at each layer of allegedly 

ineffective representation. Commonwealth v. Paddy, 15 A.3d 431 (Pa. 

2011).

Butler has failed to properly present a layered ineffectiveness claim. 

When a PCRA petitioner has failed to properly layer his claim of ineffective 

assistance of counsel, an appellate court will not remand to the PCRA court so 

that the petitioner can properly plead the layered claim when the petitioner 

cannot establish that trial counsel was ineffective. Commonwealth v. Rios, 

920 A.2d 790 (Pa. 2007). Here, Butler argues that trial counsel was ineffective 
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for failing to challenge the sufficiency of the evidence supporting his terroristic 

threats conviction. We cannot agree.

When analyzing whether the evidence was sufficient to support a 

conviction, this Court must “view the evidence in the light most favorable to 

the Commonwealth as the verdict winner in order to determine whether the 

jury could have found every element of the crime beyond a reasonable doubt.” 

Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019). “The evidence 

established at trial need not preclude every possibility of innocence and the 

fact-finder is free to believe all, part, or none of the evidence presented.” 

Commonwealth v. Brown, 52 A.3d 320, 323 (Pa. Super. 2012). “Any 

doubts regarding a defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter of law no probability 

of fact may be drawn from the combined circumstances.” Commonwealth 

v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (en banc). Additionally, this 

Court cannot “re-weigh the evidence and substitute our judgment for that of 

the fact-finder.” Id. A challenge to the sufficiency of the evidence presents 

a pure question of law and, as such, our standard of review is de novo and 

our scope of review is plenary. Commonwealth v. Jacoby, 170 A.3d 1065, 

1076 (Pa. 2017).

To convict Butler of terroristic threats, the Commonwealth had to 

establish that he made: (1) a threat to commit a crime of violence; and (2) 

that the threat was communicated with the intent to terrorize. 18 Pa.C.S.A. 

§2706(a)(1); Commonwealth v. Walls, 144 A.3d 926, 936 (Pa. Super. 
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2016). Importantly, we note that “[t]he purpose of [section 2706] is to 

impose criminal liability on persons who make threats which seriously impair 

personal security or public convenience.” 18 Pa.C.S.A. § 2706 cmt.; Walls, 

supra. As Butler acknowledges: “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.” Butler’s Brief at 9 (quoting Commonwealth v. 

Richard, 150 A.3d 504, 514 (Pa. Super. 2016)).

Case precedent, however, has held the “terroristic threats statute is not 

meant to penalize mere spur-of the-moment threats which result from anger.” 

In the Interest of J.H., 797 A.2d 260, 262 (Pa. Super. 2002) (citation 

omitted). See, e.g., Commonwealth v. Anneski, 525 A.2d 373, 376 (Pa. 

Super. 1987) (holding evidence insufficient to support terroristic threats 

conviction when exchange of threats was made during a heated argument 

between neighbors); Walls, 144 A.3d at 938 (holding evidence insufficient to 

support terroristic threats conviction when the defendant “made a spur-of themoment threat as the result of anger during a random confrontation at a local 

shopping mall” with an assistant district attorney).

Here, although the PCRA court did not require Pa.R.A.P. 1925 

compliance, in lieu of a Rule 1925(a) opinion, the PCRA court filed an order in 

which it referred this Court to the opinion it prepared when Butler litigated his 
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direct appeal.2 See Order Sur PCRA Petition, 1/16/20 at 1 n.1. In that 

opinion, the court recited the above statements made by Butler to Officer 

Toner and concluded that they “were clearly specific threats of present and 

future harm, designed to place the officer in fear.” Trial Court Opinion, 

12/16/16, at 9. 

Our review of the record and pertinent case law supports this conclusion. 

Contrary to Butler’s self-serving claims, his words to the police officers were

not “mere bluster enunciated in a spur of the moment and heated situation 

because [he] was arrested.” Butler’s Brief at 10. To support this proposition, 

Butler, without further discussion, cites to Commonwealth v. Hudgens, 582 

A.2d 1352 (Pa. Super. 1990). In that case, this Court affirmed Hudgens’ 

terroristic threats conviction after he wielded a samurai sword in close 

proximity to the victim and said he was “going to get him.” Hudgens, 582 

A.2d at 1355. In doing so, we rejected Hudgens’ “characterization of the 

statement as a mere spur-of-the moment type of threat.” Id. at 1359. 

Rather, this Court concluded that “the victim in this case was subjected to 

precise type of psychological harm and impairment of personal security which 

the [terroristic threats] statute seeks to prevent.” Id. The same is true in 

the instant case, as Butler’s threats against both Officer Toner and the officer’s 

son.

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2 Our review of the record refutes the Commonwealth’s claim that Butler 

litigated a sufficiency challenge to his terroristic threats conviction in his direct 

appeal. See Commonwealth’s Brief at 10.

 
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Moreover, the fact that the victim in the case was a police officer 

following his Butler’s arrest does not alter our conclusion. Here, Officer Toner 

was not the arresting officer and, while Butler may have been irate, “[b]eing 

angry does not render a person incapable of forming the intent to terrorize.” 

J.H., 797 A.2d at 263 (citation omitted). Compare Commonwealth v. Kidd,

442 A.2d 826, 827 (Pa. Super. 1982) (concluding that threats made by the 

inebriated defendant toward his arresting officers while being treated at a 

hospital after he injured himself by falling in the street, was insufficient to 

establish that defendant, “by his acts intended to place the officers in a state 

of fear that agitates the body and mind”).

In the alternative, Butler argues that, as applied to him, the 

Pennsylvania terroristic threats statute “is overly broad and violative [of his] 

free speech rights.” Id. We find this claim to be undeveloped and therefore 

waived. See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) 

(holding that undeveloped claims will not be considered on appeal). Absent 

waiver, we note that Butler’s First Amendment challenge is meritless because 

the United States Constitution permits states to criminalize threatening speech

which is specifically intended to terrorize or intimidate. See Commonwealth 

v. Knox, 190 A.3d 1146, 1153-61 (Pa. 2018) (holding rap lyrics that 

contained specific threats to police officers fell outside the First Amendment’s 

protective scope because of the need to protect individuals from fear of 

violence, from the disruption that fear engenders, and from the possibility that 

the threatened violence will occur).
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In sum, because Butler’s claim of trial counsel’s ineffectiveness lacks 

arguable merit, his layered claim of ineffectiveness likewise fails. We 

therefore affirm the PCRA court’s order denying him post-conviction relief.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/21/20