J-S10029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY LOROWN JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 spurof-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-themoment 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 sidebar1

following the charge and after the jury verdict. N.T., July 20, 2021, at 177.

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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 postsentence 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 drugrelated 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-themoment’ 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-themoment’ 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