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HomeMy WebLinkAboutCP-21-CR-0002325-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2325-2012 V. : : CHARGE: 1. STALKING JONATHAN M. LYTER : OTN: T211829-2 : AFFIANT: SGT. LEROY HIPPENSTEEL IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., June 11, 2013 – In this criminal case, Defendant was found guilty following a jury trial held on January 28 and 29, 2013, of Stalking. Defendant appeals the jury verdict and resulting 1 sentencing based on the following: 1. The evidence presented at trial was insufficient to sustain a conviction for the charge of Stalking because the Commonwealth failed to establish the essential element that Mr. Lyter lacked intent to have a legitimate communication, because the complaining witness testified that Mr. Lyter’s intent and purpose in communicating with her was to speak with his son who lived with the complaining witness. Furthermore, the Commonwealth failed to establish that Mr. Lyter intended to put the complaining witness in reasonable fear of bodily injury or substantial emotional distress because the complaining witness testified that his intent in communicating with her was to speak to their son and that his communication to her did not interfere with her daily routine. 2. The trial court erred in permitting the Commonwealth to enter into evidence the Protection from Abuse Order (PFA) because its admission was unduly prejudicial to Mr. Lyter. 3. Mr. Lyter’s conviction at Count 1: Stalking was so against the weight of the evidence as to shock one’s conscience because the complaining witness testified that Mr. Lyter had a legitimate purpose to communicate with her and that his communications did not interfere with her daily routine in any way. 1 Concise Statement of the Errors Complained of on Appeal, filed April 18, 2013 Statement of Facts and Procedural History The victim, Colleen Michele Clifford, testified that she and the Defendant, 2 Jonathan Lyter, were previously in a relationship and have a son together. Ms. Cifford obtained a Protection from Abuse (hereinafter “PFA”) Order against Defendant on 3 March 16, 2011, for the protection of both herself and her son. On April 1, 2011, 4 Defendant was found guilty of violating the PFA. The PFA was then modified at some 5 point to allow contact so that Defendant could see his son. The modified PFA was in 6 effect on July 12 and 13, 2012. Ms. Clifford and Defendant remained in contact during June to early July, 2012 7 because she was trying to maintain a parent relationship with Defendant. Ms. Clifford and Defendant, along with their son, took a daytrip to Knoebels Amusement Resort in 89 June or July 2012. Ms. Clifford spent Father’s Day with Defendant and his family. 10 She also spent July 4, 2012, with Defendant and their son. Ms. Clifford stated that for 11 the most part she and Defendant were able to get along, but not always. On the night of July 12, 2012, Ms. Clifford was at her home in Mechanicsburg, Cumberland County, Pennsylvania with her nine year old son and her two year old 1213 nephew. That night around 9:51 p.m. Defendant called Ms. Clifford’s cell phone. 2 Notes of Testimony, Jan. 28 and 29, 2013, 16 (hereinafter “N.T. __”) 3 N.T. 16-17; Commonwealth Ex. 9 4 N.T. 17-18; Commonwealth Ex. 10 5 N.T. 18-19; Commonwealth Ex. 1 6 N.T. 19; Commonwealth Ex. 1 7 N.T. 22 8 N.T. 22 9 N.T. 31 10 N.T. 31 11 N.T. 22 12 N.T. 19-20 2 She knew it was Defendant because she recognized his phone number on her caller ID 14 and recognized his voice. After Ms. Clifford answered the phone, Defendant started 15 an argument with her. Defendant was angry because Ms. Clifford did not give him a 16 ride the previous Sunday because she had other plans. During the July 12 phone call, Defendant asked Ms. Clifford about those plans and she refused to tell him where she 17 was. Defendant informed her that he would just ask their son where they were that 18 day. Ms. Clifford then told Defendant she wasn’t going to argue with him or talk to him 19 anymore and hung up on him. 20 After Ms. Clifford hung up on Defendant, he immediately called her again. He 21 also sent Ms. Clifford a text message stating he wanted to talk to his son. Ms. Clifford 22 texted Defendant back and told him he could speak to his son the next day. Defendant continued to call Ms. Clifford throughout the evening of July 12, 2012, even 23 after Ms. Clifford sent him a text telling him he was harassing her. Ms. Clifford stated 24 that Defendant called her forty to fifty times that night within a couple of hours. Avram Polinsky, the custodian of records for Verizon Wireless, testified regarding 25 Defendant’s cell phone records from July 12 and 13, 2012. Using Defendant’s cell phone records, Mr. Polinsky determined that Defendant called Ms. Clifford forty-four 13 N.T. 20, 51; Commonwealth Ex. 4 14 N.T. 20 15 N.T. 20 16 N.T. 21 17 N.T. 21 18 N.T. 21 19 N.T. 21 20 N.T. 22; See Commonwealth Ex. 4 21 N.T. 22 22 N.T. 22 23 N.T. 22-23 24 N.T. 23 25 N.T. 43-44 3 26 times on the evening of July 12, 2012. Defendant’s phone calls to Ms. Clifford lasted 27 from 9:51 p.m. until 11:33 p.m. Ms. Clifford testified she was “anxious” and “really nervous” as the phone calls 28 continued that evening. She was unsure whether Defendant still had a key to her 29 home and was worried that he might come there. She pushed the couch in front of 30 her door and kept mace next to her in her bedroom. Ms. Clifford stated she wanted to 31 make sure she heard if Defendant tried to enter her home. She was afraid Defendant 32 would come over to start a physical fight with her. Ms. Clifford woke on the morning of July 13, 2012, and began getting ready for 33 work at Keystone Human Services (hereinafter “Keystone”). As she was getting 34 ready, Defendant called her around 7:54 a.m. Ms. Clifford answered the phone and 35 Defendant began arguing with her again. He was angry because she hung up on him 36 the previous night and he told her he wanted to see his son. Defendant also made statements Ms. Clifford believed to be threats, when 37 Defendant told her he would help her “clean.” Ms. Clifford took this statement as a threat because of previous incidents where Defendant emptied out her closet, ripped 38 apart her books, and destroyed her property when he was angry with her. After she 26 N.T. 53; Commonwealth Ex. 2; Commonwealth Ex. 4 27 N.T. 51-53; Commonwealth Ex. 4 28 N.T. 24 29 N.T. 24-25 30 N.T. 24 31 N.T. 25 32 N.T. 25 33 N.T. 26 34 N.T. 26, 54-55; Commonwealth Ex. 5 35 N.T. 26 36 N.T. 26 37 N.T. 27 38 N.T. 28 4 informed Defendant he was threatening her, Defendant replied that he does not make 39 threats, he acts. Ms. Clifford told Defendant his son was still in bed and she did not 40 have time to argue and again hung up on him. 41 Defendant continued to call Ms. Clifford throughout the morning. According to Defendant’s phone records, between 7:54 a.m. and 9:09 a.m. on June 13, 2012, 42 Defendant called Ms. Clifford fifty-four times. Ms. Clifford testified that she was afraid during all of these calls, but she decided not to call the police because she was 43 “embarrassed”. She also had her son and nephew with her and she didn’t want them 44 to be afraid. At some point that morning, Defendant sent Ms. Clifford a text with her work 45 phone number and asking if 9:00 was when she started work. When Ms. Clifford 46 arrived at Keystone she informed her employer that Defendant might be calling there. Her employer, Ashley Carnes, gave Ms. Clifford an assignment out of the office so she 47 wouldn’t be there, in case Defendant came there looking for her. Ms. Carnes testified that the phone calls to Keystone began even before Ms. 48 Clifford arrived at work on June 13, 2012. Someone called, asked for Ms. Clifford, 49 was told she was not there, and kept calling back. After a few phone calls, Ms. 39 N.T. 27-28 40 N.T. 28 41 N.T. 29 42 N.T. 54-55, 57; Commonwealth Ex. 5 43 N.T. 29 44 N.T. 29 45 N.T. 29 46 N.T. 29 47 N.T. 30, 39 48 N.T. 40 49 N.T. 40 5 50 Carnes informed the caller that she would call the police if he called back. During 51 most of the phone calls, the caller would not speak and there was just dead air. Ms. Carnes testified that there were over twenty phone calls within an hour to an hour and a 52 half. The first phone call to Keystone asking for Ms. Clifford displayed a phone 53 number on the caller ID. Ms. Carnes showed Ms. Clifford the number, who verified it 54 was Defendant’s phone number. After that first phone call, the caller ID read private 55 caller without a phone number attached. According to Ms. Carnes, the behavior of the 56 caller was the same for all the phone calls received. Ms. Carnes eventually called the 57 police when the phone calls did not stop. According to his cell phone records, Defendant called Ms. Clifford’s place of 58 employment nineteen times on July 13, 2012, between 9:10 a.m. and 10:53 a.m. Defendant’s cell phone records indicated that for some calls he made during the morning of July 13, 2012, Defendant dialed “star 67” before entering the phone 59 number. Mr. Polinsky explained that dialing “star 67” before dialing a phone number is 60 a way to block the caller’s own number so that it will not show up on a caller ID. He stated that, depending on the carrier or local exchange company, the receiving party will 50 N.T. 40 51 N.T. 41 52 N.T. 41 53 N.T. 41 54 N.T. 41 55 N.T. 41 56 N.T. 42 57 N.T. 40 58 N.T. 57; Commonwealth Ex. 5 59 N.T. 56; Commonwealth Ex. 5 60 N.T. 56 6 see something like “block, unknown, unavailable”, etc. show up on their caller ID instead 61 of the phone number. After hearing the testimony, the jury found Defendant guilty of Stalking. Defendant was sentenced on March 26, 2013, to pay the costs of prosecution, a fine of $200, and that he undergo incarceration in a State Correctional Institute for a period of 27 months to 5 years to run concurrent with the remaining county sentences Defendant 62 was serving at the time. Defendant was given credit for thirteen days previously 63 served. This sentence was the absolute bottom of the standard range under the Pennsylvania Sentencing Guidelines as the Defendant’s prior record score was a repeat Felony 1 and Felony 2 offender (RFEL). Defendant was also ordered to have no 64 contact with Ms. Clifford. Defendant filed a Post-Sentence Motion to Modify Sentence 6566 on April 3, 2013. Defendant’s Post-Sentence Motion was denied on April 5, 2013. Defendant filed a Notice of Appeal on April 10, 2013, and a Concise Statement of the Errors Complained of on Appeal on April 18, 2013. Discussion I. Sufficiency of the Evidence Defendant contends there was insufficient evidence presented at trial to sustain a conviction for Stalking. This Court disagrees. 61 N.T. 56 62 Transcript, In Re: State Sentencing, 5-6, filed April 3, 2013 63 Id. at 5 64 Id. at 5 65 See Post-Sentence Motion to Modify Sentence, filed April 3, 2013 66 Order of Court, In Re: Post-Sentence Motion to Modify Sentence, J. Ebert, filed April 5, 2013 7 A. Legal Standard “The standard of reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offense beyond a reasonable doubt.” Commonwealth v. Strouse, 909 A.2d 368, 368-69 (Pa. Super. 2006). This standard applies equally to cases based on either direct or circumstantial evidence, as long as “the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004), quoting Commonwealth v. Coon, 695 A.2d 794, 797 (Pa. Super. 1997)(citations omitted). In proving its case, the Commonwealth “need not establish guilt to a mathematical certainty”. Id. at 750. The jury, as the trier of fact, has “the responsibility of assessing the credibility of the witnesses and weighing the evidence presented”. Commonwealth v. Newton, 994 A.2d 1127,1131 (Pa. Super. 2010), quoting Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 2008)(citations omitted). The jury is “free to believe all, part or none of the evidence”. Id. Therefore, the reviewing court “may not substitute its judgment for that of the [jury]; if the record contains support for the convictions they may not be disturbed.” Parker, 847 A.2d at 750. B. Elements Stalking is set forth in 18 Pa.C.S.A. § 2709.1. In order to prove Stalking in this case, the Commonwealth must show that Defendant (1) engaged in a course of conduct or repeatedly communicated to Ms. Clifford; (2) under circumstances which 8 demonstrate or communicated either: (a) an intent to place Ms. Clifford in reasonable fear of bodily injury; or (b) an intent to cause substantial emotional distress to Ms. Clifford. 18 Pa.C.S.A. § 2709.1(a)(2). To communicate Defendant must have “convey[ed] a message without intent of legitimate communication or address by oral, nonverbal, written or electronic means, including telephone, electronic mail, Internet, facsimile, wireless communication or similar transmission”. 18 Pa.C.S.A. § 2709.1(f). The statute further defines emotional distress as “a temporary or permanent state of mental anguish”. 18 Pa.C.S.A. § 2709.1(f). C. Analysis Defendant first contends there was insufficient evidence because the Commonwealth failed to establish that Defendant lacked the intent to have a legitimate communication with Ms. Clifford. Defendant points to the fact that Ms. Clifford testified 67 Defendant’s intent and purpose in communicating with her was to speak with his son. However, there was sufficient evidence presented to establish that Defendant had no intent of legitimate communication when he repeatedly called Ms. Clifford. Ms. Clifford testified that when Defendant called on the evening of July 12, 2012, 68 he started an argument with her for not giving him a ride the previous Sunday. She also stated that Defendant asked where she was that Sunday and told her he would ask 69 his son where they had been, when she refused to tell him. There was no testimony that Defendant asked to speak with his son as soon as he called Ms. Clifford the evening of July 12 or that speaking with his son was his main purpose in calling. While he may have asked to speak to his son at some point, Ms. Clifford never testified that 67 See Concise Statement of the Errors Complained of on Appeal, filed April 18, 2013 68 N.T. 21 69 N.T. 21 9 was his purpose in calling her. The evidence suggests, and the jury was free to infer, that Defendant’s main purpose in calling was to inquire about Ms. Clifford’s whereabouts and he only requested to speak to his son after Ms. Clifford refused to tell him where she had been the Sunday before. Even after he started an argument with her, Ms. Clifford told the Defendant he 70 could speak to his son the next day. However, upon calling her the next morning, 71 Defendant once again began arguing with Ms. Clifford. Defendant also made 72 threatening statements to Ms. Clifford when he called on the morning on July 13. While Defendant did ask to speak to his son on July 13, Ms. Clifford explained to 73 Defendant he was still sleeping. Defendant then continued to call Ms. Clifford, even 74 though he knew his son was sleeping. Additionally, Defendant placed numerous 75 phone calls to Ms. Clifford’s place of employment on July 13. If Defendant’s true purpose in calling Ms. Clifford was to speak to his son, there would have been no reason for him to call her work repeatedly. The evidence presented at trial showed that between July 12-13, 2012, Defendant placed one hundred and seventeen phone calls to either Ms. Clifford’s cell 76 phone or her place of employment. Defendant called Ms. Clifford fifty-four times on 77 the morning of July 13, after being told that his son was still asleep. The jury heard all the testimony and was free to infer based on the sheer number of phone calls 70 N.T. 22 71 N.T. 26 72 N.T. 27-28 73 N.T. 28 74 N.T. 29, 54-55, 57; Commonwealth Ex. 5 75 N.T. 40-42, 57; Commonwealth Ex. 5 76 N.T. 53-55, 57; Commonwealth Ex. 4 and 5 77 N.T. 54-55, 57; Commonwealth Ex. 5 10 Defendant made that he had no intent to call Ms. Clifford for a legitimate purpose on either July 12 or 13, 2012. Furthermore, although circumstantial, the jury was free to infer that Defendant had no intent of calling Ms. Clifford to speak to his son based on the times he called. On the evening of July 12, Defendant began calling Ms. Clifford beginning at 9:51 p.m. 78 and did not stop until 11:33 p.m. Ms. Clifford’s and Defendant’s son was nine years old at the time and was most likely asleep at some point before 11:33 p.m. On the 79 morning of July 13, Defendant began calling Ms. Clifford at 7:54 a.m. Their son was 80 still sleeping at the time he began calling. There was more than sufficient evidence for the jury to conclude that Defendant did not intend to speak to his son and in fact had no legitimate purpose when he repeatedly called Ms. Clifford. Defendant further contends there was insufficient evidence because the Commonwealth failed to establish that Defendant intended to place Ms. Clifford in reasonable fear of bodily injury or cause substantial emotional distress. Defendant again points to the fact that Ms. Clifford testified Defendant’s intent was to speak to his son. Defendant further points out that the Commonwealth did not establish this element because Defendant’s communications did not interfere with Ms. Clifford’s daily routine. However, there was sufficient evidence presented to establish that Defendant intended to place Ms. Clifford in reasonable fear of bodily injury or cause substantial emotional distress. There is no requirement that a defendant’s actions interfere with the daily routine of a victim, only that the defendant intend to place the victim in reasonable fear of bodily 78 N.T. 51-53; Commonwealth Ex. 4 79 N.T. 54-55; Commonwealth Ex. 5 80 N.T. 28 11 injury or intend to cause substantial emotional distress. 18 Pa.C.S.A. § 2709.1(a)(2). The Stalking statute defines “emotional distress” as “a temporary or permanent state of mental anguish”. 18 Pa.C.S.A. § 2709.1(f). Sufficient evidence was presented for the jury to infer that Defendant intended to cause and indeed did cause such fear of bodily injury or emotional distress to Ms. Clifford. On the night of July 12, 2012, Defendant placed forty-four phone calls to Ms. 81 Clifford within roughly an hour and a half. During the first phone call Defendant 82 questioned her whereabouts and got angry when she refused to tell him. Ms. Clifford 83 testified that these phone calls made her feel “anxious” and “really nervous”. In fact, Ms. Clifford was so nervous Defendant might come over to her home that she 84 barricaded her front door with the couch and slept with mace by her bed. She stated that she thought Defendant might come to her home that night and start a physical fight 85 with her. Furthermore, the jury was free to infer that barricading her door and sleeping with mace were not part of Ms. Clifford’s daily routine. This evidence shows that Ms. Clifford did in fact suffer a fear of bodily injury and significant emotional distress. Defendant resumed calling Ms. Clifford the next morning. During these phone 86 calls Defendant made what Ms. Clifford took as threats. Although she continued with her routine and went to work that morning, Ms. Clifford was forced to tell her employer 87 about Defendant possibly calling her there. She was then given an assignment outside of her work building so that she would not be present if Defendant came to 81 N.T. 53; Commonwealth Ex. 4 82 N.T. 21 83 N.T. 24 84 N.T. 24 85 N.T. 25 86 N.T. 27-28 87 N.T. 29 12 88 Keystone. Ms. Clifford also stated that she was “embarrassed” when asked why she 89 did not call the police at all. She also didn’t want to alarm her son and nephew and 90 cause them to be afraid. This evidence was sufficient for the jury to find that Ms. Clifford did have a fear of bodily injury and suffered temporary mental anguish that rose to the level of significant emotional distress. This evidence was more than sufficient for the jury to conclude that Defendant lacked the intent to have a legitimate communication with Ms. Clifford and that he intended to place Ms. Clifford in fear of bodily injury or cause her substantial emotional distress. There was sufficient evidence to convict Defendant of Stalking beyond a reasonable doubt. II. PFA Next, Defendant contends that this Court erred in permitting the Commonwealth to enter the Protection From Abuse (herein after PFA) Orders into evidence because they were unduly prejudicial to Defendant. While no Motion in Limine was filed by the Defendant, the issue was raised at the very beginning of the trial. The Commonwealth indicated that it needed to show that a PFA was in existence in order to establish the enhanced grading of the offense as a felony of the third degree under the provisions of 18 Pa.C.S.A. §2709.1 (c) (2). Initially, the Assistant District Attorney stated that he would “refer to the fact that the Defendant was in a relationship with the victim and that the relationship did not go well, hence the PFA Order. That will be the extent of the Commonwealth’s testimony, either introduced or suggested or argued based upon that 88 N.T. 30, 39 89 N.T. 29 90 N.T. 29 13 91 testimony with respect to the PFA itself.” The Assistant Public Defender had objected to any reference to the PFA Orders being placed into evidence. After argument in chambers, the Commonwealth was permitted to introduce into evidence, three separate Orders related to the PFA action filed by the victim against the Defendant. Commonwealth’s Exhibit No. 9, was the original Protection from Abuse Order signed by President Judge Kevin Hess on March 16, 2011. Commonwealth’s Exhibit No. 10, was a Sentencing Order issued by President Judge Kevin Hess on April 1, 2011, after the Defendant admitted that he had violated the Temporary Protective Order issued in the case. Commonwealth’s Exhibit No. 1 was the amended Order signed by President Judge Kevin Hess on May 26, 2011, which was in effect at the time of the incident which led to these charges. The importance of Commonwealth’s Exhibit No. 1 was that the amended Order permitted the Defendant to have contact with the victim in order to 92 facilitate visitation with the couple’s child. It is important to note that the underlying “bad acts” which led to the PFA Orders were never introduced or shown to the jury. This Court does take judicial notice of the Cumberland County Clerk of Court’s records relating to CP-21-MD-0218-2011. These records refer to the Defendant’s conviction for Indirect Criminal Contempt for harassing phone calls made by the Defendant to the victim on March 16, 2011. The Defendant’s admission to these charges led to the Sentencing Order admitted into the record (Commonwealth’s Exhibit No. 10). However, it must be noted that while the Commonwealth’s Exhibit No. 10 was admitted into the record, it was never viewed by the jury. 91 N.T. 4 92 N.T. 18-19 14 A. Legal Standard The admissibility of evidence is a matter left to the trial court’s discretion and will only be reversed upon a showing that the trial court abused its discretion. Commonwealth v. Davis, 737 A.2d 792, 796 (Pa. Super. 1999). Generally, relevant evidence is always admissible. Pa.R.E. 401; See also Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007). Pennsylvania Rule of Evidence 404(b)(1) provides an exception to that rule and does not permit otherwise relevant “[e]vidence of other crimes, wrongs, or acts” to be admitted “to prove the character of a person in order to show action in conformity therewith”. Pa.R.E. 404(b)(1); See also Dillon, 925 A.2d at 136. However, even though prior “bad acts” are not admissible to show character or the propensity to commit crime; there are several exceptions for which “evidence of other crimes, wrongs, or acts” is admissible. Pennsylvania Rule of Evidence 404(b)(2) lays out several other purposes for the admission of prior “bad acts”, including: “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”. Pa. R.E. 404(b)(2). This list is not exhaustive. Dillon, 925 A.2d at 137; see also Pa. R.E. 404(b) cmt. The Pennsylvania Supreme Court has allowed this type of evidence admissible for purposes of res gestae, “which allows admission of other crimes evidence when relevant to furnish the context or complete story of the events surrounding a crime”. Dillon, 925 A.2d at 137. In Dillon, the Pennsylvania Supreme Court allowed evidence of prior crimes under res gestae to establish why a victim delayed in coming forward and filing a report. Id. at 139. 15 Once evidence of prior acts is found to be relevant and probative, the court should engage in a weighing of the probative value against its potential for prejudicial effect. Dillon, 925 A.2d at 141. To be admitted in a criminal case, the evidence’s probative value must outweigh its potential for unfair prejudice. Pa. R.E. 404(b)(2); see also Pa. R.E. 403. Unfair prejudice is defined as “a tendency to suggest decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially”. Pa. R.E. 403 cmt. Evidence will not be excluded merely because it is harmful to the defendant’s case. Dillon, 925 A.2d at 141. “The law does not require a court to sanitize a trial to eliminate all unpleasant facts from the jury’s consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged.” Id. at 141; see also Smith v. Morrison, 47 A.3d 131, 137 (Pa. Super. 2012) (internal quotations and citations omitted). Rather, when balancing the evidence the court should consider the scope and contour of the evidence, in an effort to minimize the potential for prejudice. Dillon, 925 A.2d at 141. B. Analysis The PFA in this case is certainly relevant and probative. First and foremost, the existence of the PFA and Defendant’s prior violation affected the grading of the Stalking offense. 18 Pa.C.S.A. § 2709.1(c)(2). See Commonwealth v. Bortz, 909 A.2d 1221, 1224 (Pa. 2006)(noting that a certified copy of a PFA was admitted into evidence to establish the fact that the victim was the same in the stalking case as a prior civil contempt violation of a PFA order, requiring a higher grading of the Stalking offense); 16 see also Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super. 1995)(finding that a PFA order was properly admitted as evidence because it was relevant and more probative than prejudicial). In addition to the grading, the PFA is admissible under the res gestae exception to Rule 404(b) because it provides relevant background information about the relationship between Defendant and Ms. Clifford. Ms. Clifford testified that she used to be in a relationship with Defendant, but that she obtained a PFA against him to protect 93 both her and her son. Defendant violated this PFA order and a Sentencing Order was 94 issued against him. Eventually the PFA was changed to allow contact between the 95 parties so Defendant could see his son. The PFA is probative because it shows that Defendant had notice of the types of conversations he was allowed to have with Ms. Clifford. For instance, even though they were allowed to communicate regarding their 96 son, Defendant was still not to harass Ms. Clifford. Therefore, the initial PFA, the Sentencing Order, and the modified PFA, provide the complete story between the parties and the context in which they were allowed to communicate with one another during July 12-13, 2012. The PFA was also relevant and probative under the res gestae exception in explaining why Ms. Clifford did not call the police regarding Defendant’s phone calls. While not factually similar, the Dillon case is instructive on this point. In Dillon, the defendant was charged with committing sexual crimes against a child-victim, L.P. Dillon, 925 A.2d at 133. The Commonwealth sought to introduce evidence of the 93 N.T. 16-17; Commonwealth Ex. 9 94 N.T. 17-18; Commonwealth Ex. 10 95 N.T. 18-19; Commonwealth Ex. 1 96 Commonwealth Ex. 1 17 defendant’s prior acts of abuse against members of L.P.’s family to establish that L.P. was intimidated and afraid of retaliation as reasons why she did not promptly file a report. Id. at 133-34. The Pennsylvania Supreme Court found that the defendant’s prior acts could be introduced to explain why L.P. did not come forward right away. The Court indicated that the jury might otherwise develop a natural inference that the witness was not truthful because of the delay in reporting and the evidence was necessary so the jury would not be misled by that inference. Id. at 140. In the instant matter, the Defendant attempted to downplay the seriousness of his phone calls to Ms. Clifford by questioning her regarding the fact that she did not call the 97 police herself, but rather her employer, Ms. Carnes, did. Ms. Clifford testified that she was embarrassed about calling the police and did not want her son and her nephew to 98 become involved. She simply stated that she “just didn’t have the courage to call 99 [herself]”. Similar to Dillon, the jury could have been misled by Ms. Clifford’s reluctance to call the police when the phone calls started on July 12. While Ms. Clifford explained why she did not call the police immediately, the PFA helped to establish and provide context as to why she might have been “embarrassed” to contact the police. For example, the jury could have inferred that Ms. Clifford did not contact police because she thought nothing could be or would be done since the PFA was modified to allow contact between the parties. On the other hand, the jury could have also inferred that Ms. Clifford did not talk to police right away because she was really trying to make the parenting relationship work for the sake of her son. In either case, the admission of the 97 N.T. 33-34 98 N.T. 29 99 N.T. 34 18 PFA helped complete the story for the jury and dispel the natural inference to disbelieve Ms. Clifford simply because she waited to talk to police. In addition to the res gestae exception, the PFA was also relevant and probative to show an absence of mistake. As noted above, this Court took judicial notice of the Cumberland County Clerk of Court’s records relating to CP-21-MD-0218-2011, where Defendant was convicted of Indirect Criminal Contempt for violating the PFA order. For that conviction, Defendant admitted to making harassing phone calls to Ms. Clifford. Defendant’s admission led to the Sentencing Order that was admitted into the record (Commonwealth’s Exhibit No. 10). In the instant matter, Defendant’s Stalking charge stemmed from the over one hundred phone calls he made to Ms. Clifford on July 12-13, 2012. Defendant had once before admitted to violating the PFA by making harassing phone calls to Ms. Clifford. Defendant cannot argue now that he wasn’t aware that making one hundred and seventeen phone calls was harassing behavior. While the jury was not made aware of the nature of Defendant’s previous PFA violation, nevertheless, the PFA is clearly relevant and probative in proving an absence of mistake. The probative value of the PFA was not outweighed by unfair prejudice. Even without the evidence of the PFA, the jury still heard Ms. Clifford testify about the state of her relationship with Defendant. Therefore, the admission of the PFA was not unfairly prejudicial as to divert the jury’s attention away from its duty of weighing the evidence impartially. The PFA merely provided more background and context about the parties’ relationship. Furthermore, even though Defendant did not testify, the PFA was referenced by defense counsel during cross-examination of Ms. Clifford and during 19 closing argument to show that Defendant was, in fact, allowed to have contact with Ms. 100 Clifford. The PFA cannot be considered unduly prejudicial when Defendant also referenced it in an attempt to prove he called Ms. Clifford for a legitimate purpose. Again, it should be noted that the jury was only able to view the final PFA orders, Commonwealth’s Exhibits 9 and 1, which did not contain the details of the incident or 101 “bad acts” that supported the PFA in the first place. This Court considered the scope and contour of the evidence and minimized the risk of unfair prejudice, by making sure the jury did not see the underlying facts of the PFA orders. The PFA was clearly relevant and probative under the res gestae exception and to prove absence of mistake. The probative value of the PFA between Ms. Clifford and Defendant was not outweighed by unfair prejudice and was properly admitted as evidence. This Court did not err in admitting the PFA. III. Weight of the Evidence Defendant finally contends that the jury’s verdict was against the weight of the evidence. This Court disagrees. A. Legal Standard The Pennsylvania Supreme Court has stated, [a] challenge to the weight of the evidence is directed to the discretion of the trial judge, who heard the same evidence and who possesses only narrow authority to upset a jury verdict. The trial judge may not grant relief based merely on some conflict in testimony or because the judge would reach a different conclusion on the same facts. Relief on a weight of the evidence claim is reserved for extraordinary circumstances, when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of 100 N.T. 31; See also In Re: Closing Argument, Jan. 29, 2013, pages 4-5 101 N.T. 88 20 a new trial is imperative so that right may be given another opportunity to prevail. Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011)(internal citations omitted). A verdict may only be overturned on the basis that it is against the weight of the evidence where the “evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture.” Commonwealth v. Harrison, 434 A.2d 808, 812 (Pa. Super. 1981)(internal citations omitted). The weight of the evidence is exclusively within the province of the fact-finder who is free to believe all, part, or none of the evidence and testimony presented. Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004). B. Analysis Defendant maintains that the jury’s verdict was against the weight of the evidence because Ms. Clifford testified that Defendant had a legitimate purpose in communicating with her and Defendant’s communications did not disrupt her daily routine. There was ample evidence supporting the jury’s guilty verdict. As discussed supra, Defendant began an argument with Ms. Clifford shortly after she answered 102 Defendant’s first call on July 12. Defendant only asked to speak with his son after 103 Ms. Clifford refused to tell him where she had been the previous Sunday. Defendant 104 then proceeded to call her forty-four times that evening until 11:33 p.m. Ms. Clifford became “really nervous” and “afraid” and barricaded her door and slept with mace 102 N.T. 20 103 N.T. 21 104 N.T. 51-53; Commonwealth Ex. 4 21 105 nearby. The jury was free to weigh the evidence and determine that Defendant had no legitimate purpose in calling her. The next morning, Defendant again began to call Ms. Clifford, starting an 106 argument with her and threatening her. She informed Defendant his son was still 107 asleep, yet Defendant continued to call her fifty-four times that morning. Defendant also called Ms. Clifford’s work place nineteen times, where he could not speak to his 108 son. The jury was free to believe the evidence which Ms. Clifford presented regarding the purpose of Defendant’s phone calls. The jury’s guilty verdict was not against the weight of the evidence and does not shock this Court’s sense of justice. Conclusion A jury properly found Defendant guilty of Stalking based on sufficient evidence presented at trial. The jury was able to weigh the testimony and make credibility determinations. The jury determined that Defendant lacked intent to have a legitimate communication with Ms. Clifford when he called her on July 12-13, 2012. The jury also determined that through his repeated phone calls, Defendant intended to place Ms. Clifford in reasonable fear of bodily injury and to cause her substantial emotional harm. Additionally, this Court properly admitted the PFA between Defendant and Ms. Clifford 105 N.T. 24 106 N.T. 26 107 N.T. 28, 54-55, 57; Commonwealth Ex. 5 108 N.T. 57; Commonwealth Ex. 5 22 into evidence. Finally, the jury’s verdict was not against the weight of the evidence and does not shock this Court’s sense of justice. By the Court, _____________________ M. L. Ebert, Jr., J. Matthew P. Smith, Esquire Chief Deputy District Attorney Stephanie L. Cesare, Esquire Assistant Public Defender 23