MySpace Threats Reach Across State Lines

Pennsylvania law enforcement authorities have jurisdiction to prosecute domestic violence charges for comments posted on a defendant's MySpace page from a computer in another state, a Lawrence County, PA, common pleas judge has ruled.

Judge J. Craig Cox drew upon a Connecticut appellate court's decision to determine that because defendant John C. Bragdon included specific references to Lawrence County and the city of New Castle, PA, in MySpace posts that threatened his estranged wife, the posts could be distinguished from general Internet postings “because they are decipherable only to Pennsylvania residents.”

“Because the Defendant intentionally directed his communications into the Commonwealth, he is subject to the jurisdiction of Pennsylvania,” Cox wrote.

Threatening Posts

According to Cox's decision in Commonwealth v. Bragdon, (C.P. Lawrence Aug. 18, 2009) Cox, J. (available at www.palawweekly.com/getarticle.aspx?id=30164), Bragdon created a profile on the popular social networking Web site MySpace.com and posted numerous threatening statements in the “blurb” section of his page, which could be read by anyone browsing the site.

On Nov. 17, 2008, the defendant wrote: “6 mnths or 6 yrs aint gonna stop me ever. uve been lucky all u r gonna hear is a click behind ur ear and.lights out an if hes standin next 2 u him 2. I am never gona stop until u r gone ' u should have stuck to ur promises u caused what u got comin.”

On Nov. 18, 2008, five days after the first of the threatening comments were posted, John Bragdon's estranged wife, Kathleen Bragdon, and her father, Arthur Hairhoger, contacted the Lawrence County District Attorney's Office and alleged that the remarks were directed at Kathleen Bragdon. Detective Ryan King, of the District Attorney's Office charged John Bragdon with one count of making terroristic threats and four counts of stalking.

John Bragdon was apprehended in Port St. Lucie, FL, where he resided and when he failed to appear for an arraignment in Lawrence County in March, he was transported to Pennsylvania.

Following an arraignment in May, John Bragdon filed a writ of habeas corpus averring that because his allegedly threatening actions occurred in Florida, Pennsylvania has no jurisdiction.

Getting Jurisdiction

In his analysis of the defendant's arguments, Cox noted that Pennsylvania courts have found they have jurisdiction in cases in which out-of-state conduct has a harmful effect in Pennsylvania when the conduct or effect is an element of a criminal offense. However, Cox could not identify a Pennsylvania case that deals directly with the question of jurisdiction in the context of threatening statements posted publicly on a Web site.

The Pennsylvania Supreme Court addressed the issue of prosecuting criminal acts outside Pennsylvania's borders that have detrimental effects within its jurisdiction in Commonwealth v. Bighum , 307 A.2d 255 (Pa. 1973). In that case, a defendant challenging a first degree murder conviction argued that the state lacked jurisdiction because the ultimately fatal gunshot wounds he inflicted upon the victim occurred in a U.S. Postal Service parking lot, which falls under federal jurisdiction.

Citing Strassheim v. Daily , 221 U.S. 280 (1911) (available online at http://supreme.justia.com/us/221/280 ), the U.S. Supreme Court noted: “Acts done outside of a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm.” The victim in Bighum died in the city of Philadelphia, the court noted.

In Commonwealth v. Hendrickson , 684 A.2d 171 (Pa. Super. 1996), the superior court held a defendant who sent unsolicited derogatory racial and ethnic commentary by fax to 40 people in an adjacent county was charged with harassment by communication.

The defendant argued that Allegheny County, where the faxes were received, lacked jurisdiction to prosecute him because the alleged acts had occurred in Westmoreland County.

The superior court found that the defendant had not “communicated” ' an essential element of the crime charged ' until the faxes were received in Allegheny County. “Therefore, an overt act, essential to the crime charged, occurred in Allegheny County,” the superior court found.

Cox also examined a line of cases from Pennsylvania and elsewhere in which defendants used computers to communicate with and arrange sexual encounters with individuals whom they believed to be underage girls.

In Commonwealth v. John , 854 A.2d 591 (Pa. Super. 2004), a defendant communicated with an undercover officer posing as a 13-year-old girl via his computer at locations in Maryland and Delaware. He argued that the Pennsylvania courts lacked jurisdiction over the solicitation charges.

The superior court drew from Bighum and Hendrickson to conclude that the criminal solicitations were sent to and received in Pennsylvania as the defendant intended. For that reason, the solicitation occurred in Pennsylvania. Appellate courts in Illinois and North Dakota reached identical conclusions in similar cases, Cox noted.

Intended Target

While the intended recipient of the messages in the solicitation cases was beyond question, the Connecticut superior court case on which Cox ultimately relied addressed circumstances in which a message on the Internet is not addressed directly to its target.

In Rios v. Fergusan , 51 Conn. Supp. 212 (2008) (available online at www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202427221072), the superior court of Connecticut found it had personal jurisdiction over a North Carolina resident who posted videos on the online video sharing site YouTube threatening physical harm to a Connecticut resident. In the videos, the defendant brandished a firearm and said that he wanted to shoot her and to “put her face on the dirt until she can't breath no more.”

“The Connecticut [c]ourt noted that the mere posting of information on the Internet that could be read or viewed by residents of another state was not sufficient to give jurisdiction to that other state,” Cox wrote. “However, the court distinguished Fergusan's YouTube videos from mere postings that could be read in any state by observing that he had specifically targeted the plaintiff's life and security.”

In Bragdon, Cox proceeded by deciphering references to Lawrence County landmarks in the defendant's MySpace posts.

“The first clear example to of his intent appears in the statement, 'To the haters in N.C. 6 mnths at the hilton on milton was great..got 2 meet a whole bunch of junes from helco,'” Cox said.

“N.C.” is an apparent reference to New Castle, PA, the largest city in Lawrence County; “the hilton on milton” is a nickname for the Lawrence County Correctional Facility, located on Milton Street in New Castle; and “helco” is a reference to Halco Drive in New Castle, which is the location of a public housing project, Cox wrote. In other posts, Cox noted an additional reference to the Lawrence County Correctional Facility and other locations in New Castle.

“In sum, the Defendant's posts contain repeated and specific references to places in New Castle that only residents of the local area would understand,” Cox wrote.

“Although the Defendant committed the alleged acts in Florida, it is this [c]ourt's judgment that the Defendant intentionally communicated the cited statements on his MySpace page into Pennsylvania,” Cox wrote. “Much like the Rios case, the defendant's postings are distinguishable from the average Internet posting available to anyone because they are decipherable only to Pennsylvania residents.”

While John Bragdon did not send messages into the state directly, as the defendants in the solicitation cases did, “the contents of his statements demonstrate an intent to target Pennsylvania residents and to communicate those statements in Pennsylvania.”

Lawrence County Assistant Public Defender Darrell Haeberle, who represents John Bragdon, says he has not had an opportunity to discuss whether to appeal the decision. He adds that the charges are still pending and that other evidentiary issues would likely come into play.

Haeberle says he disagrees with Cox's reasoning that the inclusion of local references demonstrates an intent to communicate into Pennsylvania. Haeberle says his argument focused on the defendant's lack of an affirmative effort to communicate with the alleged victim.

“I believe our point was that most of the case law indicated if I posted something on your Web page, then communication had occurred, but if I posted something on my page and you had to come to me to see it, communication had not occurred,” Haeberle says. “I think that's a subtle distinction, but an important one.”

First Impression in PA

Lawrence County Assistant District Attorney Luanne Parkonen says the decision is significant because it is apparently the first in Pennsylvania to address the issue of a threat communicated by a generally accessible message on a social networking Web site. Parkonen says the manner of communication in domestic violence cases is becoming a more frequently disputed issue with the widespread use of the Internet and text messaging.

The Bragdon decision shows defendants they can be held accountable for messages posted on the Internet, Parkonen says.

“It does allow people to know they can't escape it. We can haul you back up here if the circumstances permit it,” she says.

Darrell Haeberle of the Lawrence County Public Defender's Office did not return calls.