J-A17019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PETER STEVEN VERWYS,

Appellant No. 817 EDA 2014

Appeal from the Judgment of Sentence February 10, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0001156-2013

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PETER STEVEN VERWYS,

Appellant No. 818 EDA 2014

Appeal from the Judgment of Sentence Entered February 10, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0001154-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 20, 2015

Appellant, Peter Steven Verwys, appeals from the judgments of 

sentence entered in two separate cases. In the case docketed at 817 EDA 

2014, Appellant was convicted of terroristic threats and was sentenced to a 

term of incarceration of 21 days to 1 year. In the case docketed at 818 EDA 
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2014, Appellant was convicted of possession of a small amount of marijuana 

and possession of drug paraphernalia, and was sentenced to a fine of $500 

and a term of one year probation, imposed to run consecutively to his term 

of incarceration. On appeal, Appellant challenges the court’s denial of his 

pretrial motion to suppress the marijuana and paraphernalia, as well as the 

sufficiency of the evidence to sustain his terroristic threats conviction. After 

careful review, we affirm Appellant’s judgment of sentence in the case 

docketed at 817 EDA 2014 (terroristic threats), and reverse his judgment of 

sentence in the case docketed at 818 EDA 2014 (possession of marijuana 

and possession of paraphernalia).

The trial court set forth the factual and procedural history of this case 

as follows:

Appellant was driving his vehicle on Route 209 Milford 

Road near Sellersville Drive, East Stroudsburg, Pennsylvania. 

Pennsylvania State Police Trooper Mark Puopolo noticed the 

vehicle had an expired tag and registration sticker. Trooper 

Puopolo initiated a traffic stop and pulled Appellant's car to the 

side of the road. After identifying Appellant, Trooper Puopolo 

discovered that there was an outstanding warrant for his arrest. 

He called for backup and Troopers Smith and Stanco arrived at 

the scene to assist him. Appellant was then arrested and placed 

in the back of the police vehicle to be taken for arraignment on 

the charges underlying the warrant. N.T. Trial, 12/9/2013, pp. 

17-34.

While Appellant was under arrest, Trooper Puopolo went 

back to Appellant's vehicle to secure two firearms that were in 

plain view. Trooper Puopolo then conducted an inventory search 

of Appellant's car and found a small amount of marijuana and a 

glass pipe in the center consol. At the Suppression Hearing, 

Trooper Puopolo testified that part of the inventory search was 

to search for valuable items in the car so the items would not be 
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stolen while the car is unattended. When Trooper Puopolo told 

Appellant his car would need to be towed, Appellant told him he 

would call his girlfriend and have her come and remove the 

vehicle from the road. Appellant's car was ultimately never 

towed and the inventory search was conducted prior to 

dispatching the tow truck. N.T. Trial, 12/9/2013, pp. 17-34; N.T. 

Preliminary Hearing, 5/8/2013, pp. 5-14.

After Appellant was released from custody, Pennsylvania 

State Police received a phone call from Appellant's brother, 

Patrick Verwys ("Verwys"). He told Police that Appellant was 

sending him text messages saying he intended to kill Trooper 

Puopolo, who was stationed at the Swiftwater Barracks. Trooper 

Robert Lombardo told Verwys to forward the text messages to 

him. The text messages that Verwys sent read[, verbatim]:

i really don't wana live anymore. i feel like shit everyday.

that i just cannot be left alone. he had to keep going. they 

wana invent shit. im sick to my stomach with the way i get 

treated. i am a native citizen and they wana fuck me over 

and over. i try to play by the rules. u took my guns. pot 

and pipe. i am gonna kill him with a 8000 lb truck. i know 

what will happen to a crown vic at 100.

no. i will find him. there is doing something wrong and 

there is inventing it. u wana turn 1 think into another. i 

wana eliminate a bad apple. 

dont waste ure time. the police are there to waste my 

time. they are very predictable. he is gonna get it. i wasnt 

smoking and driving. they wana invent stuff i dont seee 

why i am here. i feel like twice a week i get kicked around 

by something. i smoke pot to ease my back pain and helps 

me eat. so he takes 75$ away from me and my pipe. im 

done.

they dont care about my life. i don't care about his. let me 

waste some $ on a lawyer. why not.

go to swiftwater. they get off at 3. give him the heads up 

to go on vacation.

Verwys forwarded the above messages and, based on this 

information, Pennsylvania State Police Sergeant William Cawley 

had four troopers guard the Pennsylvania State Police Swiftwater 
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Barracks ("Barracks") parking lot with assault rifles and shields 

at approximately 3 pm. For safety reasons, people coming to the 

station were turned away, and people already there were not 

allowed to leave and [were] moved to the interior of the 

Barracks. All troopers that were on patrol were instructed to look 

for Appellant's vehicle. In addition, state police were prevented 

from reporting to other incidents during this time because all of 

its resources were focused on protecting the Barracks and its 

occupants and on finding Appellant.

State Police contacted Verizon Wireless, Appellant's cell phone 

service provider, and obtained a ping on his location because of 

the ongoing emergency. The ping showed that Appellant was not 

in the area of the Barracks and that he was at his residence. At 

approximately 4 pm, Sergeant Cawley had the troopers that 

were guarding the Barracks stand down. N.T. Trial, 12/9/2013, 

pp. 77, 170.

Sergeant Cawley decided not to immediately apprehend 

Appellant and wait until the morning because of the location of 

Appellant's residence, that it was after dark, and that the 

Barracks had limited manpower. Throughout the night, police 

continued to ping Appellant's location every 15 to 30 minutes. 

Id. at p. 169.

Troopers regrouped at 7 am the next morning and obtained 

an arrest warrant for Appellant. Sergeant Cawley, Corporal 

Cramer, and Corporal Chulock went to Appellant's residence. 

Corporal Chulock proceeded to the interior of the house and 

encountered Appellant. Chulock yelled to Appellant and told him 

to not move and put his hands in the air. Appellant ran into the 

woods behind the house. For safety reasons, police did not follow 

Appellant into the woods. Police set up a perimeter around the 

area and called the SWAT team to start a search. Id. at pp. 180-

82.

Between approximately 1 to 2 pm, Appellant came out of the 

woods and surrendered himself to Police.

From reviewing Appellant's phone records, police discovered 

additional messages sent from Appellant to his brother that were 

not forwarded on May 5, 2013. At trial, the Verizon Wireless 

Custodian of Records testified for the Commonwealth. The 

additional text messages read[, verbatim]:

i am going to kill him. i am so sick of them.
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they want someone to make the news. They got it.

there is no nore talking. He escalated this way to far.

a working man with chop saws and plasma cutters of 

value. they ask me if I have anything valuable in truck. i 

guess pot is worth his life. they just wana add charges. 

guess he chose wrong. stay there. You won't. im lookin for 

him.

i want it written so when they do an investigation maybe 

the next one might think harder.

dont waste ure time. no money. lawyer. I asked him if he 

wants to open that can of worms. he chose the path.

since u called them i want all 4 back and i will act like this 

day never happened. im shutting phone off im outta of 

here. this jerk off keeps calling me.

i am not gonna stop till i get justice or they give me my 

shit back.

no. when its home. you may see me. till then im gonna 

look for them.

im 8 miles awy on a mission.

im not getting tracked.

nope. got get my shit from piggy before i do.

i told the pig he was openeing a can of worms. He made 

the choice. what did he think i was gonna pay a fine and 

smile to the judge. these assholes think im stupid. When 

my shit is back I will calm down noone will ever be 

harmed.

i smiled and did what i needed to get out. He shouldve did 

his part. he charged me now its my time. it’s very simple. 

give me my shit back or im gonna waste alot of peoples 

time.

haha. tell them thats not smart. Tell them if they were 

smart they would give me my shit back. Its that simple. 

they dont wana fmd me. i know hes off work and i will find 

them. lazy pigs are too predictable. i watch out for them 

too much.
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nope. There wasnt much to give them. i took a drive to 

find him. i am gonna kill him.

no they took my shit. im gonna take one of them. there 

more scared. they wont find me but they will find them. 

there the hunted now. I just want my shit back. if i get it 

back i wont harm a soul. i have no intention to. he opened 

a book with no end. i just want my shit back. i could care 

less if i can get them tomorow or not. i want everything 

back. they want a make a criminal i will even the playong 

field.

no thanks i eat when i got home and dropped truck. its too 

easy to find.

On June 11, 2013, two Criminal Informations were filed: 1154 

CRIMINAL 2013 and 1156 CRIMINAL 2013.

Case number 1154 CRIMINAL 2013 charged Appellant with 

Possession of a Small Amount of Marijuana for Personal Use, 

Possession of Drug Paraphernalia, Driving an Unregistered 

Vehicle, and Operating a Vehicle Without a Valid Inspection.

Case number 1156 CRIMINAL 2013 charged Appellant with 

Terroristic Threats with Intent to Terrorize Another.

Appellant was arraigned on June 12, 2013.

On July 12, 2013, Appellant filed omnibus pretrial motions, 

and a hearing on Appellant's motions was held on August 26, 

2013. We denied Appellant's omnibus motions in an Order and 

Opinion dated October 29, 2013, which we incorporate here.

On December 3, 2013, Appellant filed a [“]Motion in Limine to 

Exclude the Commonwealth's Reference to Appellant Being 

Arrested on Arrest Warrant[”] and an accompanying brief in 

support of the motion. On December 5, 2013, the 

Commonwealth filed a [“]Brief in Opposition to Appellant's 

Motion in Limine.[”] We orally denied the motion reasoning that 

referencing the arrest warrant was allowed under res gestae.

On December 10, 2013, a jury found Appellant guilty of 

Terroristic Threats with Intent to Terrorize Another, Possession 

of Marijuana—Small Amount Personal Use, and Possession of 

Drug Paraphernalia. The jury also found that the Commonwealth 

had proven beyond a reasonable doubt that the threat caused 

the occupants of the building, place of assembly or facility of 
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public transportation to be diverted from its normal or customary 

operations, thus making this offense a third degree felony under 

18 Pa.C.S. § 2706(d). That same day, Appellant was found guilty 

after a bench trial of Driving an Unregistered Vehicle and 

Operating a Vehicle Without a Valid Inspection and sentenced to 

pay a fine of $100.31.

On February 10, 2014, Appellant was sentenced to a period of 

incarceration of not less than 21 days[’] nor more than 1 year 

for the Terroristic Threats offense, one year of probation for 

Possession of Drug Paraphernalia to run consecutive to the 

sentence for Terroristic Threats, and a $500 fine for Possession 

of a Small Amount of Marijuana. Appellant was given a 21-day 

time credit and placed on immediate parole.

On March 11, 2014, Appellant filed a Notice of Appeal to the 

Pennsylvania Superior Court.[1] Also on March 11, 2014, this 

Court ordered Appellant to file a Concise Statement of Matters 

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) within 

21 days of the date of the Order. On April 1, 2014, the Rule 

1925(b) statement was filed.

Trial Court Opinion (TCO), 5/21/14, at 2-8 (footnotes omitted).

Herein, Appellant raises three issues for our review:

a. Where a vehicle is immobilized for failing to have a 

registration but the vehicle poses no threat to public safety, can 

the vehicle be lawfully impounded and therefore subject to an 

inventory search?

b. Where the driver of a vehicle is arrested, but the police do not 

remove or attempt to remove the vehicle and the police have a 

protocol in place that allows the arrestee to coordinate for the 

alternative removal of the vehicle, can the vehicle be lawfully 

inventory searched?

c. Are the text messages sufficient to sustain a conviction for 

Terroristic Threats where [the] text messages were sent from 

____________________________________________

1 Appellant filed separate notices of appeal in each of his two cases. On April 

9, 2014, he filed with this Court an application for consolidation, which we 

granted by order dated April 28, 2014.
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one brother to another brother complaining about the first 

brother’s interaction with the state police that particular day, and 

the messages are later forwarded by the receiving brother to the 

[s]tate [p]olice?

Appellant’s Brief at 7.

Appellant’s first two issues challenge the trial court’s denial of his 

pretrial motion to suppress the marijuana and paraphernalia found in his car 

during the inventory search. We need not address the claims set forth in 

Appellant’s first issue because, for the reasons stated infra, we agree with 

Appellant that the inventory search of his vehicle was illegal based on the 

argument he presents in his second issue. 

Our standard of review for denial of a suppression motion is as follows:

In reviewing an order from a suppression court, we consider the 

Commonwealth’s evidence, and only so much of the defendant’s 

evidence as remains uncontradicted. We accept the suppression 

court’s factual findings which are supported by the evidence and 

reverse only when the court draws erroneous conclusions from 

those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998). 

In examining the validity of the inventory search conducted in this 

case, we apply the following legal principles:

A warrantless inventory search of an automobile is 

different from a warrantless investigatory search of the same. An 

inventory search of an automobile is permitted where: (1) the 

police have lawfully impounded the automobile; and (2) the 

police have acted in accordance with a reasonable, standard 

policy of routinely securing and inventorying the contents of the 

impounded vehicle. A warrantless investigatory search of an 

automobile requires both a showing of probable cause to search 

and exigent circumstances.
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In determining whether a proper inventory search has 

occurred, the first inquiry is whether the police have lawfully 

impounded the automobile, i.e., have lawful custody of the 

automobile. The authority of the police to impound vehicles 

derives from the police's reasonable community care-taking 

functions. Such functions include removing disabled or damaged 

vehicles from the highway, impounding automobiles which 

violate parking ordinances ... and protecting the community's 

safety.

The second inquiry is whether the police have conducted a 

reasonable inventory search. An inventory search is reasonable if 

it is conducted pursuant to reasonable standard police 

procedures and in good faith and not for the sole purpose of 

investigation.

Commonwealth v. Chambers, 920 A.2d 892, 895 (Pa. Super. 2007) 

(quoting Commonwealth v. Henley, 909 A.2d 352, 359 (Pa. Super. 2006) 

(en banc) (citations and quotation omitted)).

In the present case, the trial court concluded that Trooper Puopolo 

lawfully impounded Appellant’s vehicle under 75 Pa.C.S. § 3352(c)(3). That 

provision of the Motor Vehicle Code (MVC) states:

(c) Removal to garage or place of safety.--Any police officer 

may remove or cause to be removed to the place of business of 

the operator of a wrecker or to a nearby garage or other place of 

safety any vehicle found upon a highway under any of the 

following circumstances:

***

(3) The person driving or in control of the vehicle is 

arrested for an alleged offense for which the officer is 

required by law to take the person arrested before an 

issuing authority without unnecessary delay. 

75 Pa.C.S. § 3352(c)(3). 
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Applying section 3352(c)(3) to the facts of this case, the trial court 

reasoned:

Here, [Appellant] was arrested pursuant to an outstanding 

warrant. His car was unregistered. He was driving his car when 

he was arrested, and he was the only occupant of the car. His 

car was parked on the side of the highway. Thus, Trooper 

Puopolo properly could have impounded the car, and the car was 

in police custody.

Trooper Puopolo testified he intended to have the car 

towed because [Appellant] was under arrest. He conducted the 

inventory search prior to [Appellant’s] telling him that he wished 

to call his girlfriend to pick up the car. Thus, the car was 

properly in police custody and was going to be towed.

Suppression Court Opinion (SCO), 10/29/13, at 7. 

Appellant, however, argues that while section 3352(c)(3) may have 

provided Trooper Puopolo with the authority to impound his vehicle, a lawful 

impoundment (and inventory search) did not occur because Trooper Puopolo 

did not follow the Pennsylvania State Police (PSP) protocol for handling a 

vehicle when the driver is arrested. Namely, Trooper Puopolo testified at the 

preliminary hearing (the transcript of which was entered into evidence at the 

suppression hearing), that upon the arrest of a driver, the PSP protocol 

provides an officer with “the option to tow the vehicle.” N.T. Preliminary 

Hearing, 5/8/13, at 9. When later asked “what is the protocol ... when it 

comes to vehicle stops and vehicles that are on the side of the road[,]” 

Trooper Puopolo responded, “[t]he protocol is to tow the vehicle unless they 

[the driver] can make alternative arrangements.” Id. at 19 (emphasis 

added). Appellant avers that “[b]y permitting a driver to make alternative 
J-A17019-15

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arrangements, the vehicle is not impounded or in the custody of the [PSP]. 

Rather, as in [Commonwealth v.] Lagenella, [83 A.3d 94 (Pa. 2013),] it is 

merely immobilized until the decision is made by the driver and the driver’s 

agent arrives.”2 Appellant’s Brief at 25. 

A similar argument was addressed by this Court in Commonwealth v. 

Chambers, 920 A.2d 892 (Pa. Super. 2007). There, Chambers challenged 

the validity of an inventory search of his vehicle by arguing that under the 

police protocol, the officer “was required to determine whether [Chambers] 

wanted to make towing arrangements personally, thus obviating the need 

for impounding [his] pick-up truck and conducting an inventory search....” 

Id. at 896. Chambers’ argument was based on his “interpretation of 

General Order D88.8, pursuant to which [the] [o]fficer ... conducted the 

inventory search.” Id. Because the Commonwealth had “properly attached” 

General Order D88.8 “as an exhibit to the suppression notes of testimony[,]” 

this Court was able to assess the requirements of that order. Id. at 896 

n.3. Upon doing so, we concluded:

A plain reading of the General Order at issue reveals that, 

contrary to [Chambers’] assertion, [the] [o]fficer ... was not 

required to determine whether [Chambers] wished to make 

reasonable alternate arrangements for the pick-up truck, thus 

obviating the need for an inventory search. The General Order 

explicitly provides that officers are authorized to tow a vehicle if 

____________________________________________

2

In Lagenella, our Supreme Court held that a police officer is not 

authorized to conduct a warrantless search of a vehicle where it is merely 

immobilized and not impounded. Lagenella, 83 A.3d at 105-106.
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it is illegally parked or obstructing the normal and safe 

movement of traffic. There is no qualifying provision for this 

authority. Therefore, contrary to [Chambers’] assertion, [the] 

[o]fficer ... did not disregard the police department’s standard 

inventory search procedures.

Id. at 896-897 (footnotes omitted).

Unlike in Chambers, here, the only evidence produced by the 

Commonwealth to establish the policy of the PSP regarding impounding and 

searching vehicles was the testimony of Trooper Puopolo; the 

Commonwealth did not provide documentary evidence of any written PSP 

procedures.3 While Appellant is correct that Trooper Puopolo testified that 

“[t]he protocol is to tow the vehicle unless they [the driver] can make 

alternate arrangements[,]” shortly thereafter, the trooper conflictingly 

stated, “[i]t is in our regulations to tow the vehicle.” N.T. Preliminary 

Hearing at 19. Based on this record, it is unclear whether the policy of the 

PSP is to automatically tow (and inventory search) a vehicle when the driver 

is arrested, or to only tow the vehicle if the driver cannot make alternative 

arrangements for the vehicle’s removal. There was also no testimony by 

Trooper Puopolo that an inventory search is conducted by the PSP regardless 

____________________________________________

3 We acknowledge that the Commonwealth is not required to present the 

court with the police department’s written policy governing inventory 

searches. See Commonwealth v. Gatlos, 76 A.3d 44, 59 (Pa. Super. 

2013).
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of whether a vehicle will be towed or removed by an agent of the arrested 

driver.4 

Based on this record, we are constrained to conclude that the 

Commonwealth did not meet its burden of proving that the inventory search 

was conducted pursuant to reasonable, standard police procedures. See 

Chambers, 920 A.2d at 895; Commonwealth v. West, 937 A.2d 516, 

526-527 (Pa. Super. 2007) (stating the Commonwealth must prove the 

legitimacy of the inventory search).5 Therefore, the court erred by denying 

____________________________________________

4

In Chambers, we noted that the officer “testified that, even if [Chambers] 

had personally made arrangements for the vehicle to be towed, his 

department would still require an inventory search for valuables in order to 

protect the police’s integrity.” Chambers, 920 A.2d at 897 n.6. We also 

pointed out that Chambers did “not proffer[] any evidence that he would 

have been able to make alternate arrangements for the pick-up truck.” Id. 

To the contrary, here, it is undisputed that Appellant did make alternative 

arrangements to have his girlfriend remove his vehicle.

5 We additionally note that this Court has “reject[ed] the notion that police 

may seize a vehicle merely because they arrest the owner.” West, 937 

A.2d at 527; Commonwealth v. Hennigan, 753 A.2d 245, 260 (Pa. Super. 

2000) (“[W]here the sole issue is the safety of a defendant’s legally parked 

vehicle pending an arrest, the police do not have the authority to impound 

said vehicle absent some reasonable nexus to the alleged crime or to a 

community care-taking responsibility.”). In Hennigan, we concluded that 

the authority of police to impound a vehicle under section 3352(c)(3) is 

invoked “where the vehicle poses a possible public safety concern or traffic 

control concern if left unattended.” Hennigan, 753 A.2d at 258. Stated 

another way, section “3352(c)(3) authorizes police to impound a vehicle in 

circumstances that involve the community care-taking functions of the 

police, such as public safety concerns and traffic control concerns....” Id. at 

259. In this case, Trooper Puopolo testified that Appellant’s vehicle was not 

blocking traffic; it was parked “on the shoulder [of the roadway] over the 

right fog line.” N.T. Preliminary Hearing at 14. Therefore, while Appellant 

(Footnote Continued Next Page)
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Appellant’s motion to suppress the marijuana and paraphernalia discovered 

in his vehicle. Consequently, we reverse his judgment of sentence for 

possession of a small amount of marijuana and possession of drug 

paraphernalia.

However, for the following reasons, Appellant’s judgment of sentence 

for terroristic threats must be affirmed, as his challenge to the sufficiency of 

the evidence to sustain that conviction is meritless. In Commonwealth v. 

Koch, 39 A.3d 996 (Pa. Super. 2011), we stated:

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Commonwealth v. Moreno, 14 A.3d 

133 (Pa. Super. 2011). Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 

2009). The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Moreno, supra at 136.

Id. at 1001.

Appellant challenges his conviction of terroristic threats. 

The Crimes Code states that terroristic threats exist when 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). Thus, to obtain a conviction for 

(Footnote Continued) _______________________

does not raise this specific challenge to the validity of the inventory search, 

it does not appear that the Commonwealth presented sufficient evidence 

that Appellant’s vehicle posed a public safety or traffic control concern to 

justify its impoundment under section 3352(c)(3).
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making a terroristic threat, the Commonwealth must prove that 

(1) the defendant made a threat to commit a crime of violence; 

and (2) such threat was communicated with the intent of 

terrorizing another or with reckless disregard for the risk of 

causing terror. Commonwealth v. Kelley, 444 Pa. Super. 377, 

664 A.2d 123, 127 (1995). 

In re L.A., 853 A.2d 388, 391-392 (Pa. Super. 2004). Additionally, “[a] 

direct communication between the defendant and the victim is not required 

to establish the crime of terroristic threats.” Id.

Here, it is clear that Appellant’s threats to Trooper Puopolo were 

indirect, as Appellant transmitted his threatening text messages to his 

brother, not to the trooper. While Appellant acknowledges that direct 

communication of a threat is not necessary, he maintains that “in cases 

where a direct communication was not found to be required, there was a 

close connection between the person to whom the threat was directed (the 

listener) and the target of the threat (the non-present party).” Appellant’s 

Brief at 27. Appellant contends that here, there was no close connection 

between Appellant’s brother and Trooper Puopolo to prove that Appellant 

intended that his brother communicate the threats to the trooper.

In support of this argument, Appellant cites In re L.A., where “the 

listener was a teacher/counselor working with the shelter that was housing 

the juvenile,” and the target of the threat was the juvenile’s caseworker. 

Appellant’s Brief at 27; see also In re L.A., 853 A.2d at 390-391. 

Appellant argues that “[t]he teacher/counselor ... would be expected to 

communicate the threat to the caseworker[,]” whereas Appellant would not 
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have reason to expect that the threatening statements he transmitted to his 

brother would be relayed to Trooper Puopolo. 

Appellant also relies on Kelley. In that case, Kelley called an attorney 

whose firm had previously represented him. Kelley, 664 A.2d at 127. 

When a secretary answered the phone and asked if she could take a 

message for the attorney, Kelley “made a threat to commit a crime of 

violence” against the attorney and a local judge. Id. Kelley’s threat was 

communicated to both the attorney and the judge, and he was ultimately 

convicted of terroristic threats. On appeal, Kelley contended that his 

conviction was not supported by sufficient evidence “because there was no 

direct contact between himself and the victims....” Id. at 127. We rejected 

this argument due to the fact that Kelley had made the threat to the 

attorney’s secretary after she specifically asked to relay a message to the 

attorney. Id. Appellant claims that unlike in Kelley, he had no “realistic 

expectation” that that his brother would deliver his threatening text 

messages to Trooper Puopolo. 

While the connection between Appellant’s brother and Trooper Puopolo 

may not have been as close as those discussed in In re L.A. and Kelly, we 

conclude that the evidence was sufficient to prove that Appellant intended 

that his brother transmit the threats to the trooper. As the trial court noted, 

Appellant told his brother: “go to swiftwater. they get off at 3. give him the 

heads up to go on vacation.” TCO at 13 (quoting N.T. Trial, 12/9/13, at 

153). Based on this message, the trial court reasoned that, 
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Appellant explicitly told his brother to communicate the message 

to the intended recipient – Trooper Puopolo. Appellant’s 

statements were not made between brothers with no expectation 

the threats would not be communicated to the victim; Appellant 

told his brother to pass the threats along and give Trooper 

Puopolo the message, which he did. 

Id. at 13-14. Additionally, the court noted that Appellant also told his 

brother, “I want it written so when they do an investigation maybe the next 

one might think harder.” Id. at 14 (quoting N.T. Trial at 152). The court 

concluded that this message “further shows that Appellant did not want the 

messages to stay between him and his brother. He was, in a way, trying to 

send a message to the state police that bad things could possibly happen if 

they interacted with him in the future.” Id. at 14.

We agree with the trial court’s interpretation of Appellant’s text 

messages, and with its conclusion that those messages were sufficient to 

prove, beyond a reasonable doubt, that Appellant wanted his brother to 

communicate the threats to Trooper Puopolo. 

Appellant additionally contends, however, that his threatening text 

messages were sent in the “spur of the moment,” and that this Court has 

held that “terroristic threats charges were not meant to apply” in such 

circumstances. Appellant’s Brief at 29. Appellant relies on Commonwealth 

v. Anneski, 525 A.2d 373 (Pa. Super. 1987). There, 

this Court concluded that the jury's finding that the appellant 

was guilty of making terroristic threats was contrary to the 

weight of the evidence. In Anneski, there was an ongoing 

dispute between the appellant and her neighbor regarding the 

rural roadway the appellant's children were required to use to 

walk to school. The neighbor had complained that the children 
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impeded her progress when she was driving. Believing that the 

neighbor's car actually struck a school bag being carried by one 

of her children one morning, the appellant confronted her 

neighbor and an argument ensued. The neighbor told the 

appellant that if the children did not get out of her way, she 

would run into them again. The appellant replied that if the 

neighbor ran into her children again, she would get a gun and 

use it. This Court concluded that while the evidence established 

an exchange of threats made during a heated argument between 

neighbors, the circumstances of the exchange suggested that 

the appellant lacked a settled purpose to terrorize her neighbor. 

In re J.H., 797 A.2d 260, 262-263 (Pa. Super. 2002) (citing Anneski, 525 

A.2d at 376).

Even if we accept Appellant’s claim that he sent the messages to his 

brother “out of anger[,]” Appellant’s Brief at 30, this Court has stated that 

“[b]eing angry does not render a person incapable of forming the intent to 

terrorize.” In re J.H., 797 A.2d at 263 (citing Commonwealth v. Fenton, 

750 A.2d 863, 865 (Pa. Super. 2000)). Instead, “this Court must consider 

the totality of the circumstances to determine whether the threat was a 

result of a heated verbal exchange or confrontation.” Id. 

Here, there was no heated verbal exchange or argument between 

Appellant and Trooper Puopolo prior to Appellant’s threatening messages. 

Trooper Puopolo testified that during the traffic stop, Appellant was 

cooperative. N.T. Preliminary Hearing at 24. While the trooper also stated 

that Appellant “was upset that [the trooper] had seized his marijuana,” 

Trooper Puopolo testified that he believed Appellant “understood ... that [the 

officer] was doing what [he] had to do....” Id. at 24. At no point did 

Trooper Puopolo indicate that Appellant was angry during their interaction, 
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or that the two men had any heated verbal exchanges. Moreover, 

Appellant’s threats were not made during his interaction with the trooper; 

rather, Appellant’s text messages were sent after the traffic stop. Therefore, 

the evidence does not support Appellant’s claim that the threats were made 

in the ‘spur of the moment.’ See In re B.R., 732 A.2d 633 (Pa. Super. 

1999) (holding that B.R.’s threat to a teacher could not be construed as 

‘spur-of-the-moment’ where they were “not the product of any heated verbal 

exchange or confrontation” between B.R. and the teacher, and “[t]here was 

no conversation at all between [the teacher] and B.R. prior to B.R.’s 

uprovoked statements”); In re J.H., 797 A.2d at 263 (concluding that J.H.’s 

threats to his teacher were not ‘spur-of-the-moment’ where, prior to those 

threats, “there was no heated verbal exchange or confrontation between J.H. 

and his teacher”).

In sum, Appellant’s challenge to the sufficiency of the evidence to 

sustain his terroristic threats conviction is meritless. Accordingly, we affirm 

his judgment of sentence for that offense. However, because the trial court 

erred by denying Appellant’s pretrial motion to suppress the evidence 

underlying his convictions for possession of a small amount of marijuana and 

possession of drug paraphernalia, we reverse Appellant’s judgment of 

sentence for those crimes. 

Judgment of sentence affirmed in the case docketed at 817 EDA 2014. 

Judgment of sentence reversed in the case docketed at 818 EDA 2014. 

Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015