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HomeMy WebLinkAboutCP-21-SA-2256-2003COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: SUMMARY HARASSMENT KIMBERLY McANDREW · CP-21-SA-2256-2003 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., June 22, 2004. IN this summary offense case, Defendant was found guilty by District Justice Charles Clement, Jr., of harassment~ on September 23, 2003.2 Defendant subsequently appealed from the District Justice's judgment of sentences and the case was tried de nava before this court on February 10, 2004.4 At the conclusion of the de nava trial, at which Defendant was represented by counsel, Defendant was found guilty by this court of summary harassments and was sentenced to pay the costs of prosecution and a fine of $100.00, and to undergo a period of probation of 90 days.6 Defendant has now filed an appeal from the judgment of sentence to the Pennsylvania Superior Court] The bases of her appeal have been expressed as follows: 1. The Trial Court erred when it found beyond a reasonable doubt that the Defendant has violated 18 Pa.C.S.A §2709(a)(3). 2. The evidence was insufficient as a matter of law to support the conclusion that the Appellant engaged in a course of conduct against the alleged victim. 8 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. §2709(a)(3). See District Justice Transcript of Docket, filed October 30, 2003. See Notice of Appeal from Judgment of Sentence, filed October 22, 2003. 4N.T. 3. N.T. 49. N.T. 52. See Notice of Appeal, filed March 9, 2004. This opinion in support of the judgment of sentence appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On a challenge to the sufficiency of the evidence in a criminal case, the evidence is to be viewed "in the light most favorable to the Commonwealth" and "all reasonable inferences in the Commonwealth's favor" are to be entertained. Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996) (quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1982)). Viewed in this light, the evidence presented at trial may be summarized as follows: At a time in the past, Defendant was romantically involved with a gentleman named Daniel Martin Webber,9 who was at the time, and is, married to a woman named Lori Ann Webber.l° From December 1, 2002, until March 12, 2003, Mr. Webber lived with Defendant at her residence in New Cumberland, Cumberland County, Pennsylvania, and prior to that time Mr. Webber had spent significant periods of time with Defendant in the Scranton, Pennsylvania, area, where she was then living. ~ On March 12, 2003, Mr. Webber terminated his relationship with Defendant, moved out of Defendant's residence, and returned to his wife and children~2 at 317 l0th Street, New Cumberland, Cumberland County, Defendant Kimberly McAndrew's Statement of Matters Complained upon on Appeal Pursuant to Pa. R.A.P. 1925(b), filed March 22, 2004. N.T. 27. l0 N.T. 21. N.T. 36. l: N.T. 31. 2 Pennsylvania.~3 On that day, Defendant appeared at the Webber residence and ~4 physically struck Lori Ann Webber in anger. The bitterness of Defendant toward the Webbers reached the point that, at the suggestion of the New Cumberland Borough Police Department,~5 Mr. Webber sent Defendant the following certified,~6 "no-contact" letter, which she received on May 6, 2003:~7 Dear Mrs. McAndrew, On 29 April 2003 you followed and subsequently engaged my minor.., daughter.., in a conversation that included lewd and inappropriate issues. Later that day you drove to my residence . . . and again . engaged [my daughter] and [another daughter], in conversation that, again, included lewd and inappropriate issues. Subsequent to that contact you called my residence via telephone and engaged [the daughters] in further discussion of lewd and inappropriate issues. Subsequent to the telephone conversation you contacted [one of the daughters] via her America Online electronic mail address. At about 7:30 p.m., you placed a call to my place of work and left a voice mail message that included profanity and other inappropriate remarks. These contacts were inappropriate and will not be tolerated in the future. Therefore, this correspondence serves as notice to you that you will cease having any further contact with my daughters by any means .... You are not to follow and/or harass me or any member of my family. You are further advised that you will have no contact with my wife .... This includes contact with me or any member of my family at our ~3 N.T. 4. ~4 N.T. 37. ~s N.T. 27. 16 ]d' 17 N.T. 8-9. 3 place or work and/or school locations. You are also advised that you are not to enter onto my property .... If you make or attempt to make contact [with us] I will contact the Borough of New Cumberland Police Department and/or Fairview Township Police Department immediately and will request any appropriate criminal charges be filed against you .... Thank you for your attention to this matter. On Saturday, June 21, 2003, two further incidents occurred that precipitated the charge of summary harassment subjudice.~9 At about 3:30 p.m.,2° Lori Ann Webber was loading groceries into her vehicle in the parking lot of a supermarket in Fairview Township, York County, Pennsylvania.2~ While doing so, she observed Defendant,~ driving a black Dodge Neon automobile,~3 in a turning lane with her left turn indicator activated,~4 suggesting that she intended to turn into a parking area associated with a certain bank.25 The supermarket and bank were situated next to each other, but the buildings were not physically businesses attached.26 As she sat in the turning lane with her left turn indicator activated, Defendant saw Mrs. Webber loading groceries, and she promptly turned right, into the supermarket parking lot.27 Once in this parking lot, Defendant drove her vehicle into the particular parking lane where Mrs. Webber was located and ~8 Commonwealth's Exhibit 1. 19 N.T. 5, 21. 20 N.T. 10. 2~ N.T. 5-6. 22 N.T. 6. 23 N.T. 8. 24N.T. 6, 10. 25 N.T. 6. 26 N.T. 11. :v N.T. 6, 9-10. 4 slowed to a stop directly behind Mrs. Webber's vehicle.28 Mrs. Webber observed the Defendant laughing at her, and noticed Defendant mouth something at her, the content of which she could not discern through Defendant's half-opened window.29 The two made eye contact, and Mrs. Webber continued to load her groceries with a view toward leaving as quickly as possible.3° At that point, Defendant drove her vehicle around the parking lane in a circle, returning to where Mrs. Webber was parked and stopped behind her for a second time.3~ Again the two made eye contact, at which point Defendant finally pulled away.3~ Mrs. Webber then left the parking lot, drove home, and called her husband on his cellular telephone.33 During the telephone conversation with her husband, Mrs. Webber communicated to him that she was upset by what had just transpired, and that she was nervous.34 With respect to Mrs. Webber's emotional state at the time of the telephone call, Mr. Webber testified that he believed she was crying and that she seemed "very distraught.''35 At the time he received the telephone call from Mrs. Webber, Mr. Webber was returning from Harrisburg, traveling south on Bridge Street in Lemoyne, Cumberland County, Pennsylvania.36 While still conversing with Mrs. Webber on the cellular telephone, Mr. Webber observed a black Dodge Neon automobile traveling toward him, similar to the Dodge Neon automobile driven by 28 N.T. 6. 29 ~o Id. ~l ]d. ~ N.T. 7. At the time of the incident, Mrs. Webber did not own her own cellular telephone. N.T. 33. ~4 N.T. 7. ~5 N.T. 21-22. ~6 N.T. 24. Defendant.37 Mr. Webber recognized the vehicle as Defendant's,38 and, based upon his previous interactions with the Defendant,39 as well as the occurrence which had just been relayed to him by Mrs. Webber,4° he focused on Defendant, who was traveling north on Bridge Street,4~ as she passed by him.42 With nothing to impede his vision,43 Mr. Webber witnessed the Defendant44 extend her left hand out of her window and display her middle finger.45 At the same time, Mr. Webber and the Defendant made eye contact and he witnessed the Defendant mouth the words "fuck" and "you.''46 Following these events, Mr. Webber made a u-mm, and drove to the Borough of New Cumberland Police Department, where he made a report to Officer Joseph Spadaccino of the incidents occurring on that day.47 Officer Spadaccino then filed a citation, charging Defendant with harassment in violation of 18 Pa. C.S.A §2709(a)(3). Defendant chose not to testify at the trial. At the conclusion of the trial, the court found her guilty of summary harassment and imposed the sentence indicated above. 37/d. 38 Id. Mr. Webber testified that he had seen the vehicle many times throughout his acquaintance with Defendant and had, in fact, driven it on many occasions. N.T. 24-25. 39 N.T. 27-28, 33-34; see also Commonwealth's Exhibit 1. 4o N.T. 21-24. 4~ N.T. 25-27. Mr. Webber was traveling at approximately 20 to 25 miles per hour as the vehicles passed. N.T. 26. 42 See N.T. 26, 33-34. 43 N.T. 26. Mr. Webber's vision was better than 20/20. N.T. 34. 44 N.T. 26. 45 Id. 46 Id. 47 N.T. 28-29. 6 DISCUSSION Statement of Law Test for Sufficiency of the Evidence. In an evaluation of the sufficiency of the evidence presented at trial, the proper test is "whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable a trier of fact to find every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996) (quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984)). The trier of fact is "free to believe all, part or none of the evidence." Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). Harassment. Section 2709(a)(3) of the Crimes Code reads: Offense defined.-- A person commits the crime of harassment when, with the intent to harass, annoy or alarm another, the person: (3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose; .... Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. §2709(a)(3). "Course of conduct" is defined under the statute as "[a] pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct .... "Act of December 6, 1972, P.L. 1482, § 1, as amended, 18 Pa. C.S.A. §2709(f). A "course of conduct," by definition, includes more than a single act. See, e.g., Commonwealth v. Schnabel, 236 Pa. Super. 280, 284, 344 A.2d 896, 898 (1975) (adopting New York's interpretation of course of conduct set forth in People v. Hotchkiss, 300 N.Y.S.2d 405 (1969) by requiring more than a single act to satisfy course-of-conduct requirement). 7 A prosecution for harassment under 18 Pa. C.S.A. §2709(a)(3) is proper, and the course-of-conduct requirement satisfied, when a defendant's conduct includes two or more acts committed with the intent to harass, annoy or alarm, and which serve no legitimate purpose. See 18 Pa. C.S.A. §2709(a)(3), (f); see also Commonwealth v. Coon, 695 A.2d 794, 800 (Pa. Super. Ct. 1997) (firing of three bullets toward victim within twelve-minute period sufficient to form course of conduct under statute). Under the stalking statute,48 a similar course-of-conduct requirement is satisfied by the commission of two acts. See Commonwealth v. Leach, 1999 PA Super. 72, ¶7, 729 A.2d 608, 611-12 (1999).49 Application of Law to Facts In this unfortunate case in which feelings have been injured, the activities by Defendant represented, in the court's view, a course of conduct of the type which Section 2709(a)(3) of the Crimes Code was intended to deter. While only a summary offense in this context, the statutory proscription serves to facilitate police and judicial intervention in situations which, left unattended, have a potential for escalating and culminating in very serious consequences. For the foregoing reasons, it is believed that the evidence was sufficient in terms of a course of conduct to support a verdict of guilty of summary harassment. BY THE COURT, J. Wesley Oler, Jr., J. Geoffrey S. Mclnroy, Esquire Assistant District Attorney Cumberland County District Attorney's Office 48 Act of December 9, 2002, P.L. 1759, §2, as amended, 18 Pa. C.S.A. §2709.1. 49 The stalking statute and harassment statute define course of conduct identically. Pa. C.S.A. §2709(f), with 18 Pa. C.S.A. §2709.1(f). Compare 18 Michael S. Ferguson, Esquire 2411 North Front Street Harrisburg, PA 17110 Attorney for Defendant 9