HomeMy WebLinkAbout01-0146 CRIMINALCOMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
MARK A. SMITH
OTN: HI 13769-5
CHARGE: (2) HARASSMENT (SUM)
NO. 01-0146 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., January 10, 2002.
In this criminal case, Defendant Mark A. Smith was charged with simple assault, a
misdemeanor offense,~ and harassment, a summary offense.2 At trial, a jury deadlocked
on the misdemeanor assault charge3 and the court found Defendant guilty of the summary
harassment charge.4
Defendant was subsequently sentenced to pay the costs of prosecution and make
restitution to the victim in the amount of $1,801.00, and to undergo imprisonment in the
county prison for a period of 30 days.
Defendant has appealed to the Pennsylvania Superior Court from the judgment of
sentence.5 In his statement of matters complained of on appeal, Defendant expresses the
issues on appeal as follows:
~ See Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, as amended, 18 Pa. C.S.A. § 2701
(West 1996 & Supp. 2001).
~ See Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, as amended, 18 Pa. C.S.A. § 2709
(West 1996 & Supp. 2001).
3 Order of Ct., Sept. 7, 2001. With the consent of counsel, evidence as to the summary
charge was received by the court in the course of the jury trial on the misdemeanor
charge. N.T. 4, Trial, Sept. 5-7, 2001 (hereinafter N.T., Trial, ~. Counsel also agreed
that the court should enter a verdict as to the summary offense notwithstanding the
mistrial resulting from the jury's deadlock on the misdemeanor charge. N.T., Trial, 4.
4 Order of Ct., Sept. 7, 2001. The Commonwealth elected not to retry Defendant on the
misdemeanor charge. N.T. 2, Sentencing Proceeding, Oct. 9, 2001 (hereinafter N.T.,
Sentencing, ).
5 Def.'s Notice of Appeal, filed Oct. 22, 2001.
1. The finding of Defendant, Mark A. Smith, guilty of
harassment a summary offense was without sufficient and credible
evidence, nor was the weight of the evidence in favor of the finding of
guilty.
2. The finding of Defendant, Mark A. Smith, guilty of
harassment a summary offense was an abuse of discretion and an error of
law.
3. The finding of Defendant, Mark A. Smith, guilty of
harassment a summary offense and then sentencing him to thirty (30) days
of incarceration was an abuse of discretion and an error of law.
4. The finding of Defendant, Mark A. Smith, guilty of
harassment a summary offense was effectuated and entered by the Court
without a review of the Exhibits presented at the trial, particularly Exhibits
8&9.6
This opinion in support of the judgment of sentence is written pursuant
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
to
This case arises from an incident in which Defendant Mark A. Smith allegedly
assaulted his coworker Charles Nice, who suffered bruises, lacerations, and a sinus
fracture.7 The incident occurred on September 6, 2000, shortly after 1:30 p.m. near the
entrance to Consolidated Freightways, a trucking company located in Carlisle [Middlesex
Township], Cumberland County, Pennsylvania.a At that time, both Defendant and Nice
were union employees at Consolidated Freightways, were well acquainted with each
other, and had a history of animosity.9
Nice's testimony, which the court found credible, may be summarized as follows:
The incident occurred as Nice was entering the front gate of Consolidated Freightways at
around 1:30 p.m., at which time he encountered Defendant, who was walking towards
6 Def.' s Statement of Matters Complained of on Appeal, filed Nov. 8, 2001.
7 N.T., Trial, 28-29, 38, 74-79; Commonwealth's Ex. 1-7.
a N.T., Trial, 13, 19-21.
9 N.T., Trial, 12-13, 16, 225, 230.
2
him.l° The two did not exchange any words at this point, and Nice believed that
Defendant intended to walk past him.il As Nice passed Defendant, Defendant stepped
around Nice and punched him in his left eye, knocking Nice's glasses off his face. Nice
immediately "cover[ed] up" and did not attempt to return blows, but tried to exit back
through the entrance gate to his truck. 12 Defendant followed Nice, repeatedly striking him
in the face and in the back of the head. Nice reached a car and "lean[ed] out over the
fender" in an effort to protect himself from further injury.13 After delivering
approximately 15-20 blows, Defendant stopped and told Nice, "[N]ext time, I'm gonna
kill [you]." Defendant then ran back through the entrance gate of Consolidated
Freightways.TM Nice eventually reached his truck and drove the short distance to the
company management offices to call 911 to report the incident.15 Nice was in "substantial
pain" from bruising, lacerations, and a fracture in his facial area, although none of these
injuries caused permanent damage.16 Nice initially refused medical help, but later was
taken by ambulance to a hospital where he underwent examination and was released later
on the same day.17
Officer William A. Nieves, Jr., of the Middlesex Township Police Department,
responded to the 911 call and arrived at Consolidated Freightways at 1:44 p.m.18 Officer
Nieves testified that Nice told him that Defendant had "sucker punched" him and had
repeatedly punched him as he tried to escape.19 Officer Nieves stated that he found a
l0 N.T., Trial, 20-21.
11 N.T., Trial, 21.
12 N.T., Trial, 21-22.
13 N.T., Trial, 22.
14 N.T., Trial, 22.
15 N.T., Trial, 23-27.
16 N.T., Trial, 38; see also Commonwealth's Ex. 1-7.
17 N.T., Trial, 28-30.
la N.T., Trial, 193.
19 N.T., Trial, 194-95.
"blood trail" leading from the entrance of Consolidated Freightways to the car that Nice
earlier identified as the one he leaned over for protection)° Officer Nieves testified that
there was blood "splattered" on this vehicle and on the side of Nice's truck, which was
parked nearby at the time of the incident.2~
Other testimony presented by the Commonwealth also supported Nice's assertion
that he arrived at work shortly after 1:30 p.m. and that he had been injured at this time.22
Defendant, upon seeing Nice after the incident, remarked to another employee that Nice
was "pretty messed up.''23 A physician's assistant who treated Nice in the emergency
room on September 6, 2000, testified that Nice had, in fact, suffered bruising, lacerations,
and a "significant fracture to the left frontal sinus.''24 Further, It was undisputed that Nice,
immediately after the alleged attack, notified other workers that Defendant had caused his
injuries)s
Defendant conceded that he had been present at Consolidated Freightways at the
time of the alleged incident but denied accosting Nice. He suggested that Nice had
injured himself and attributed the injuries to Defendant as retaliation for a previous
occurrence in which Defendant's actions had caused Nice to be terminated)6 Defendant
20 N.T., Trial, 197.
2~ N.T., Trial, 197. Officer Nieves stated that Nice's version of events was corroborated
by the photographs introduced as Commonwealth's Exhibits 8 and 9, both of which show
several droplets of blood on and around the hood of a vehicle. N.T., Trial, 197-98;
Commonwealth's Ex. 8-9. At sentencing and in Defendant's statement of matters
complained of on appeal, it was suggested that the court did not take into account
Exhibits 8 and 9, and that these exhibits undercut Nice's testimony because the
photographs only show blood droplets on the hood, not any blood smears, which, it was
argued, would be more indicative of a struggle. N.T., Sentencing, 5. The Court is unable
to agree that the exhibits cast significant doubt upon Nice's version of the incident.
22 N.T., Trial, 73, 76-78, 86-87, 94, 150, 161, 193-95, 253.
23 N.T., Trial, 244.
24 N.T., Trial, 78.
25 N.T., Trial, 87, 161,202-03,245.
26 See, e.g., N.T., Trial, 40-42, 263. Defendant attempted to expose discrepancies in
Nice's testimony with respect to whether Defendant used a pipe in striking Nice, when
4
had formerly held a position as union steward for Consolidated Freightways,27 and had,
in this position, notified management of an alleged infraction of company policies
committed by Nice, a report that had resulted in Nice's termination.28 Nice was reinstated
following negotiations between the union and Consolidated Freightways. Nice filed an
internal complaint with the union regarding Defendant's report to Consolidated
Freightways, and Defendant was fined $1,000 by the union and removed from his
position as union steward.29 While the animosity between Defendant and Nice potentially
supplied a motive for a false accusation by Nice, it also supplied a motive for a physical
attack by Defendant,3° and the court found the latter conclusion credible in light of the
testimony.
At the conclusion of trial, Defendant was found guilty by the court of the summary
offense of harassment. He was subsequently sentenced to pay the costs of prosecution, to
make restitution in the amount of $1,801.00 to Nice, and to undergo imprisonment for a
period of 30 days.3~ In the sentencing order, the court included a statement of reasons for
the sentence:
Nice lost his glasses, and whether Defendant was wearing gloves during the incident. See,
e.g., N.T., Trial, 39-51. However, the court did not find that these potential and minor
inconsistencies undermined the veracity of Nice's testimony.
27 The union steward is selected from the employees of a company to act as a first-level
union representative for the employees of that company. The position does not provide
the employee with any additional compensation. N.T., Trial, 128-29.
28 N.T., Trial, 40-41, 126. According to the testimony of a union official, Nice was
alleged to have threatened another employee and damaged a locker. N.T., Trial, 127.
29 E.g., N.T., Trial, 126-27.
30 See Commonwealth v. Curry, 318 Pa. Super. 490, 495-97, 465 A.2d 660, 662-63
(1983) (noting that trier of fact may conclude that evidence of existing ill-will between
the victim and the defendant provides either a motive for victim to fabricate incident or
motive for the defendant to commit crime).
3~ Order of Ct., Oct. 9, 2001.
The reasons for the sentence are that the offense represented an unprovoked
attack by a fellow worker at the workplace, without warning and with
significant consequences to the victim, that Defendant has displayed neither
remorse nor acceptance of responsibility for the attack, and that a lesser
sentence would depreciate the seriousness of the offense and fail to have a
deterrent effect.32
Defendant did not request reconsideration of the sentence imposed33 but filed an appeal
from the judgment of sentence to the Pennsylvania Superior Court.34
DISCUSSION
Sufficiency of the Evidence. In evaluating 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 the 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. Petaccio, 764 A.2d
582, 585 (Pa. Super. Ct. 2000) (quoting Commonwealth v. Griscavage, 512 Pa. 540, 543,
517 A.2d 1256, 1257 (1986)).
The summary offense of harassment is defined in Section 2709 of the Crimes
Code, which provides, in pertinent part, as follows:
A person commits the crime of harassment when, with intent to harass,
annoy, or alarm another, the person:
(1) strikes, shoves, kicks or otherwise subjects the other
person to physical contact ....
18 Pa. C.S.A. § 2709(a).
32 Order of Ct., Oct. 9, 2001.
33 See Pa. R. Crim. P. 720 cmt. ("Although there are no post-sentence motions in
summary appeals following the trial de novo..., nothing in this rule is intended to
preclude the trial judge from acting on a defendant's petition for reconsideration.").
34 Def.'s Notice of Appeal, filed Oct. 22, 2001.
In the present case, the elements of 18 Pa. C.S.A. § 2709(a)(1) were satisfied by
Nice's testimony, which the court found credible. If this testimony is viewed in the light
most favorable to the Commonwealth, it demonstrates that Defendant intentionally
attacked Nice near the entrance of Consolidated Freightways and continued striking him
as Nice attempted to escape in the direction of his vehicle. Further, the animosity between
Defendant and Nice supplied a motive for the attack by Defendant. This evidence was
sufficient to establish both that Defendant acted with the intent to harass, annoy or alarm
and that he struck Nice multiple times in the process of acting upon that intention,
thereby satisfying the elements of summary harassment.
Weight of the Evidence.35 In deciding whether a new trial should be granted based
on a challenge to the weight of the evidence, the proper test is whether the verdict is so
contrary to the evidence presented at trial as to "shock [the court's] sense of justice."
McE/rath v. Commonwealth, 405 Pa. Super. 431, 443, 592 A.2d 740, 745 (1991). While
this issue requires a review of all evidence presented at trial, credibility determinations
are within the province of the trier of fact. Id. at 442-43,592 A.2d at 745.
In the present case, the weight of the evidence supported the guilty verdict. The
court, as trier of fact, found entirely credible the version of events provided by Nice and
corroborated in part by other evidence. The court rejected Defendant's denial of
involvement in the incident and concluded that the animosity between Nice and
Defendant served as motivation for the attack on Nice. Based on these credibility
determinations, considered in conjunction with other evidence of a corroborative nature,36
the verdict cannot be said to have been against the weight of the evidence.
35 Normally this issue would be waived because it was not raised prior to the notice of
appeal; however, because this case involves a summary offense, in which no post-
sentence motions may be made, weight of the evidence issues may be initially raised on
appeal. See Pa. R. Crim. P. 720; Common,yea/th v. Dougherty, 451 Pa. Super. 248, 258-
59, 679 A.2d 779, 784 (1996).
36 See Commonwealth's Ex. 1-12 (showing injuries to Nice and blood in the area of the
incident).
Sentencing. Under the Sentencing Code, a defendant convicted of a summary
offense may be sentenced to a period of incarceration not exceeding 90 days and a fine
not exceeding $300.3? Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, as amended, 18 Pa.
C.S.A. § 1101(7); Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa. C.S.A. § 1105. In
the present case, Defendant has challenged the imposition of a 30-day period of
imprisonment following his conviction for the summary offense of harassment. Because
this sentence was well under the statutory limit, a challenge to the legality of the sentence
would not be meritorious. See Commonrvea/th v. Archer, 722 A.2d 203, 209 (Pa. Super.
Ct. 1998).
While challenges to the legality of a sentence may be appealed as of right,
challenges to the discretionary aspects of sentence will be entertained on appeal only
when "it appears that there is a substantial question that the sentence imposed is not
appropriate under [the Sentencing Code]." Act of Nov. 26, 1978, P.L. 1316, No. 319, § 3,
as amended, 42 Pa. C.S.A. §9781(b) (West 1996 & Supp. 2001); see a/xo
Commonrvea/th v. Tu/adziecki, 513 Pa. 508, 512-14, 522 A.2d 17, 19-20 (1987). A
"substantial question" exists when a "colorable argument" can be made that "the trial
judge's actions were inconsistent with a specific provision of the sentencing code or
contrary to the fundamental norms which underlie the sentencing process."
Commonrvea/th v. Rodda, 723 A.2d 212, 214 (Pa. Super. Ct. 1999) (quoting
Commonrvea/th v. Canfield, 432 Pa. Super. 496, 500, 639 A.2d 46, 48 (1994)).
"Generally, the imposition of sentence is a matter vested within the sound
discretion of the trial court." Commonrvea/th v. duPont, 730 A.2d 970, 986 (Pa. Super.
Ct. 1999). Parties challenging the discretionary aspects of a sentence must establish that
"the sentencing court ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision."
Rodda, 723 A.2d at 214. A claim that the sentence imposed was excessive is generally
not sufficient to establish abuse of discretion absent a show of noncompliance with
37 Because this case involves the summary offense of harassment, the sentencing
statutory mandates. See, e.g., Commonwealth v. Kraft, 737 A.2d 755, 756-57 (Pa. Super.
Ct. 1999).
In the present case, the sentence imposed was consistent with the mandates of the
Sentencing Code. Defendant was provided with a right of allocution at the sentencing
proceeding and the court heard information pertaining to Defendant's activities and
standing within the community. Following this proceeding, the court entered an order
explaining that this offense "represented an unprovoked attack by a fellow worker at the
workplace, without warning and with significant consequences to the victim, [and
that] ... Defendant [had] displayed neither remorse nor acceptance of responsibility for
the attack.''38 Based on this determination, the court was of the opinion that the 30-day
period of imprisonment would best serve the interests of the public in terms of deterrence
of similar activities and the needs of Defendant for rehabilitation.
Under the Sentencing Code, a sentence of total confinement may be imposed
when the court, after considering "the nature and circumstances of the crime and the
history, character, and condition of the defendant," finds that "a lesser sentence will
depreciate the seriousness of the crime of the defendant." Act of Dec. 30, 1974, P.L.
1052, No. 354, § 1, as amended, 42 Pa. C.S.A. § 9725 (West 1996 & Supp. 2001). In the
present case, the court found that, due to the nature of the offense and Defendant's
behavior, a sentence lesser than 30 days total confinement "would depreciate the
seriousness of the offense and fail to have a deterrent effect.''39 Under 42 Pa. C.S.A.
§ 9725, it is believed that this finding was consistent with the court's authority to impose
a sentence of total confinement.
For the foregoing reasons, it is believed that the verdict of guilty of summary
harassment was supported by the evidence and that the judgment of sentence was
properly entered.
guidelines do not apply. See 204 Pa. Code § 303. l(a).
38 Order of Ct., Oct. 9, 2001.
39 Order of Ct., Oct. 9, 2001.
BY THE COURT,
J. Wesley Oler, Jr., J.
Michelle Sibert, Esq.
Assistant District Attorney
Kurt A. Blake, Esq.
40 East Princess Street
York, PA 17403
Attorney for Defendant
10