Wednesday, September 2, 2020

PA Superior Court rules Facebook post is terroristic threat

A man who was convicted of making terroristic threats on Facebook will appeal a new ruling from the Pennsylvania Superior Court affirming the guilty verdict, according to his attorney, reported

“I’m very disappointed with the decision and the reasoning,” Neil Marcus of Monongahela, Pennsylvania, said Aug. 27. “We will file a petition for review with the Pennsylvania Supreme Court.”

Marcus represents George Shallenberger, who was convicted in the Washington County Court of Common Pleas in March 2019 of making terroristic threats. Given the choice between felony or misdemeanor charges, the jury chose the more serious one. Judge Valarie Costanzo sentenced him to up to 23 months of prison.

“Of course I feel that the jury got it wrong and rulings by the judge prevented my client from getting a fair trial,” Marcus said. “What I want to focus on, however, is this notion that my client can be found guilty of terroristic threats because of a Facebook posting talking to another individual. The only case in Pennsylvania where this was ever done was the case of Commonwealth v. Beasley, which was so different. In the Beasley case people made a rap video naming the police officers and what they were going to do to them, which put the officers in fear.”

This issue moves into new territory that could have broader implications, according to the defense attorney.

“Shallenberger was speaking to somebody else and while his comments were crude and poorly chosen, they were not a threat to anybody,” Marcus said. “Sometimes people say ‘I could kill that person’ and we all realize it is just anger or frustration. The issue in a terroristic threat case is the intent of the defendant, not the subjective interpretations of people who are reading the information secondhand.”

Marcus suggested that others who vent on social media could find themselves in the same shoes as Shallenberger.

“If this decision stands, we are truly going down a slippery slope because many, many people use the internet to say all kinds of things,” Marcus said. “People can pick and choose their remarks, say they were frightened, and the district attorney can have a field day prosecuting whoever they want for any one of a number of things. Truly this is a bad decision and I hope the Supreme Court will consider our appeal.”

Washington County District Attorney Eugene Vittone II prosecuted the case and defended it at Superior Court. Vittone could not be reached immediately for comment.

Senior Judge Kate Ford Elliott wrote the nonprecedential opinion, released Aug. 26, joined by Judges Jacqueline Shogan and Judith Ference Olson. They affirmed Costanzo on every one of six claims of error.

This is from their review of the factual history Costanzo provided.

“The first witness for the commonwealth was Chief Clayton Shell, who is employed as the ‘chief of police for Ringgold School District Police Department,’” Elliott said. “Chief Shell testified that between October 18, 2017 and November 21, 2017, the teachers of the Ringgold School District ‘were on strike’ and ‘were on the roadways at the edge of the [school] property, picketing.’ The teachers ‘were picketing at all four schools’ of the Ringgold School District.”

At about 11:15 a.m. Nov.  9, 2017, “Chief Shell received a telephone call from a Ringgold teacher about several Facebook posts ‘that everybody was seeing,’” Elliott said. “This teacher ‘texted’ Chief Shell ‘some screenshots of the posts.’ The first post was made by ‘George Shallenberger’ on November 8, 2017 and stated: ‘Happiness is a Warm Gun.’ The next post was also made by ‘George Shallenberger’ on the same date and stated: ‘Guns don’t kill people, I kill people.’”

Both posts were made to Shallenberger’s personal Facebook page, the court said. The chief also received screenshots of several posts Shallenberger made that day on a Facebook page called “Mon Valley Views,” which was described as a “thread about the strike; people for it, against it; for the teachers, against the teachers; this was all within that thread.”

The community page was open for public view, even though Shallenberger’s profile would have only been visible to his Facebook friends. The case against Shallenberger depended on those statements he made on the public page in the discussion about the teachers, mainly this: “Shoot them and start over.”

At trial, Shallenberger testified that he was only naming a favorite song when he said, “Happiness is a Warm Gun,” and that he was quoting a favorite movie line when he said, “Guns don’t kill people, I kill people.” He admitted to saying, “Shoot them and start over,” but he said he didn’t mean to cause the teachers to be fearful.

Shallenberger presented character witnesses who described him as a law-abiding citizen. That opened the door for the district attorney to bring into evidence a prior guilty plea to a terroristic threats charge in 2000, the Superior Court ruled.

“We find that the commonwealth established the elements of terroristic threats with intent to terrorize another beyond a reasonable doubt,” Elliott said.

The ruling denied claims of abuse of discretion in failing to dismiss the commonwealth’s case, and denying motions to preclude the Facebook posts on the homepage, the prior terroristic threats conviction, mitigating circumstances suggesting that he was pointing a gun at his girlfriend. The panel also shut down a claim of cumulative error, saying there could be no cumulative error without an individual error. And the panel upheld the trial judge on denying a request for change of venue.

“Appellant’s argument contains general allegations about the extent of local media coverage of his case and the number of people living in Washington County with direct or indirect affiliation with Ringgold School District teachers,” Elliott said. But she found no evidence of “actual prejudice.”

“Based on our review of the record, we can discern no abuse of discretion on the part of the trial court when it denied appellant’s motion to change the venue of the trial,” Elliott said. She concluded that the venue issue, like the others, “is without merit.”

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