In June of 2020, stores throughout the United States were experiencing an increase in looting due to social unrest. It was during this time that police became aware of a social media post on Facebook made by a juvenile, E.L.W. wherein she stated, “We looting Walmart in Wilkes-Barre, PA tomorrow at 8 p.m. in all black, or just me?”
When interviewed about the communication, E.L.W. apologized for her actions and stated that she did not mean to post the statement on Facebook. E.L.W. further stated that she was never going to “loot” Walmart, that she was joking around and had no intention of doing it. Additionally, the interviewing officer ultimately testified that E.L.W. appeared not to grasp the consequences of her actions prior to initiating the social media post.
E.L.W. was subsequently petitioned to Juvenile Court to answer to allegations that she committed the act of making a Terroristic Threat by communicating a threat to cause serious public inconvenience and doing so with reckless disregard of the risk of causing said inconvenience.
The juvenile court adjudicated E.L.W. delinquent of the alleged offense.
On appeal, although E.L.W. did not dispute that she made the communication at issue or that it constituted a threat, she maintained that the juvenile court erred in finding that the Commonwealth established that she communicated the threat with the requisite mens rea, namely that she did so with a reckless disregard of the risk of causing such inconvenience.
E.L.W. argued that the juvenile court improperly focused on the effect that the communication had on the people who received it, instead of whether E.L.W. was (1) conscious of the risk that her threat would have that effect and (2) she nonetheless disregarded that risk when she made her Facebook post.
The Superior Court agreed with E.L.W., explaining that “the mens rea of recklessness implicates knowledge in two ways: (1) the actor must consciously (i.e., with knowledge) disregard a substantial and unjustifiable risk; and (2) the risk that the actor disregards is to be measured by the circumstances known to the actor.”
Therefore, a conscious disregard of a risk necessarily “involves first becoming aware of the risk and then choosing to proceed in spite of the risk.” In other words, even though the speaker may not specifically intend the prohibited result, he must contemplate its substantial risk and then choose to ignore it.
Accordingly, unless the Commonwealth produced evidence in the instant action to substantiate a finding that E.L.W. was consciously aware of a substantial and unjustifiable risk that terror or public inconvenience would result from her communication and then chose to post it regardless, the evidence could not support her adjudication.
The Superior Court made clear that the effect of E.L.W.’s communication on its viewers is not an element of the crime of terroristic threats and it was error for the juvenile court to focus on the communication’s effect on the recipients of the communication.
The Superior Court explained that the fact that E.L.W. made her communication without understanding the potential harm that she risked creating at most would support a finding that she acted negligently. However, although “a reasonable person could have, and perhaps should have, been aware that her post might cause a reaction that would amount to a public inconvenience, evidence that proves negligence is insufficient to establish a violation of [this subsection of Terroristic Threats].”
Instead, to meet the recklessness state of mind required, the Commonwealth must offer evidence to show that (1) the actor was conscious of the risk that their communication would cause terror or public inconvenience and (2) they chose to make the communication nonetheless.
Here, the Superior Court concluded that the juvenile court adjudicated E.L.W. delinquent upon a factual finding supporting only negligence and E.L.W.’s adjudication of delinquency could therefore not stand.
