HomeMy WebLinkAbout01-0746 CRIMINALCOMMONWEALTH
ROBERT MATTHEW
SKLAR
OTN: H129331-6
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGE: HARASSMENT BY
COMMUNICATION OR ADDRESS (10 Cts.)
NO. 01-0746 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., June 10, 2002.
IN this criminal case, Defendant, proceeding pro se, was found guilty
following a jury trial of ten counts of harassment by communication.~ His
sentence consisted of fines and probation.2
From the judgment of sentence Defendant has filed a direct appeal to the
Pennsylvania Superior Court. IN a statement of matters complained of on appeal,
he has expressed the grounds for appeal as follows:
1. Did the trial court make an error by failing to charge the
jury with the model jury instructions for harassment by
communication after both the trial court and the attorney for
the Commonwealth agreed to utilize the inst[ru]ctions as
presented by the Defendant.
2. Did the trial court error by failing to follow the
information of the Commonwealth as the controlling document
of charges during trial and either charge the jury accordingly or
dismiss the charges.
3. The evidence presented by the Commonwealth was
insufficient to sustain the verdict of guilty beyond a reasonable
doubt on each individual charge of harassment by
communication.3
~ See Order of Court, January 18, 2002.
: Order of Court, March 12, 2002.
~ Letter from Defendant Robert M. Sklar to J. Wesley Oler, Jr., Judge (May 15, 2002), filed May
17, 2002.
This opinion in support of the judgment of sentence 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, which
must be 'given the benefit of all reasonable inferences.'" Commonrvea/th v.
Stewart, 375 Pa. Super. 585, 595, 544 A.2d 1384, 1389 (1988) (quoting
Commonrvea/th v. Morotti, 358 Pa. Super. 141, 144, 516 A.2d 1222, 1223 (1986)).
Viewed in this light, the evidence at trial may be summarized as follows:
At all times pertinent to the case, Defendant Robert M. Sklar was a vice-
president, executive director and member of the board of directors4 of a nonprofit
organization5 headquartered in Trevose, Bucks County, Pennsylvania,6 known as
Regional Medical Transport.? The organization operated an ambulance service.8
For some of its ambulance trips or runs, Regional Medical Transport filed
claims for payment from the federal Medicare program.9 These claims were
processed by a corporation headquartered in Camp Hill (East Pennsboro
Township), Cumberland County, Pennsylvania, known as Highmark, Inc.,
pursuant to a contract with the federal government,l° Highmark, Inc., used the
fictitious name of HGS Administrators. ~
In March of 2000, HGS Administrators discovered that the claims of
Regional Medical Transport displayed a pattern of aberrant billings--i.e., billings
N.T. 344-45.
N.T. 345; see Commonwealth's Exhibit 5.
See Commonwealth's Exhibit 5.
N.T. 344-45.
N.T. 344-45.
N.T. 83-87.
l0 N.T. 39, 83-87.
N.T. 83-87.
2
which were excessive in comparison to billings of similar entities.~2 As a result of
this discovery, in August of 2000, it placed Regional Medical Transport on
medical review.~3 Under the medical review program, HGS Administrators
subjected each claim of the provider to examination for purposes of determining
whether it was sufficiently supported by evidence of medical necessity to warrant
payment.TM The medical review program was carried out by an office of HGS
Administrators known as "medical review," which operated within a division
known as "program safeguards."~5
In determining medical necessity, the medical review office of HGS
Administrators followed a policy, sanctioned by federal officials, whereby a claim
was denied if a responsible third party, such as a hospital or physician, upon
request, did not provide documentation to support the medical necessity of the trip
or run in question.~6 As a result of this policy, several claims submitted by
Regional Medical Transport were denied.~7
Defendant took issue with the policy followed by the medical review
department of HGS Administrators, whereby third-party documentation was
required to support a claim.~8 In challenging the policy, Defendant made
numerous calls to employees of HGS Administrators.~9 Some of the calls were
variously characterized as "inappropriate[ ]," "demanding," "inexcusable," and
~2 N.T. 114, 150.
~3 N.T. 113-15.
~4N.T. 99-101, 128.
~5 Commonwealth's Exhibit 3. In referring to the various functional elements of HGS
Administrators in this opinion, the court has attempted to use consistent terminologies in referring
to the elements, compatible with an organizational diagram introduced by the Commonwealth as
Exhibit 3. This terminology is not always the same word as that used by a given witness--e.g.,
"office" as opposed to "department."
16 N.T. 102-08, 174.
~7 N.T. 120. A given claim could include a number of different trips and patients. N.T. 183-84.
One such claim of Regional Medical Transport, Inc., included thirty-eight runs or trips. Id.
18 N.T. 170-84.
19 N.T. 95; see Commonwealth's Exhibit 8.
3
"profanity-laced,''2° and the number of calls became unreasonable and overly
burdensome to HGS Administrators.2~
After consultation with federal officials,22 by letter dated December 1,
2000, HGS Administrators, through its vice-president and special counsel Stephen
M. Walker, Esq.,23 limited the type of contact which Defendant was permitted to
have with HGS Administrators to written communications.24 By letter dated
December 8, 2000, Mr. Walker relaxed the procedure slightly to permit calls to
himself from Defendant.25
The policy whereby claims of providers on medical review were denied on
medical necessity grounds in the absence of third-party documentation was
changed by HGS Administrators upon advice of federal officials in February of
2001.26 However, appeals of denials of claims processed by the medical review
department before the policy changed continued to work their way through an
appeals system established by HGS Administrators.27 Under this system, a
dissatisfied claimant's first appeal was to an office of HGS Administrators known
as the "appeals area," which operated within a division known as "program
management";28 if unsuccessful, the claimant's second level of appeal was to a
department known as the "medicare hearing office," which operated within a
division known as "contract management.''29
2o N.T. 95, 170; Commonwealth's Exhibit 4.
2~ N.T. 93-99.
22 N.T. 95-101.
23 Mr. Walker was in charge of the program safeguards department of HGS Administrators, of
which the medical review office was a part. Commonwealth's Exhibit 3.
24 Commonwealth's Exhibit 8; N.T. 95-96.
25 Commonwealth's Exhibit 9; N.T. 96-97.
26 N.T. 160-66.
27 N.T. 160-66.
28 N.T. 88; Commonwealth's Exhibit 3.
29 N.T. 88.
4
Notwithstanding the letters of December 2000 from HGS Administrators,
Defendant had not stopped the repetitive and unproductive calls to employees of
the company.3° These calls were variously described as "angry," "sarcastic,"
"demanding," repetitive" and "burdensome.''3~ On March 2, 2001, a call received
by Susan Marie Keim, a secretary for HGS Administrators,32 from Defendant
contained the following message, in a hostile tone:
Now you can take this message and it's recorded and you
can give it to anybody you want but I'll tell you right now you
want to know what pisses me off, when people like you hang
up the phone and you have no fucking business doing that.
You are a derelict, you have no business intercepting people's
phone calls if you're not gonna do your job. That's what
fucking pisses me off. You got it. Don't do it again.33
The call had been preceded by a call earlier that morning from Defendant, who
was attempting to reach Mr. Walker, which Ms. Keim had answered as part of her
secretarial duties.34 In that call, Ms. Keim informed Defendant that she had been
instructed to advise him to put his communications in writing, and terminated the
call.3~
The procedure as to which Ms. Keim had been instructed was detailed by
HGS Administrators in a letter dated March 2, 2001, communicated by fax and
mail to Defendant, reading as follows:
Dear Mr. Sklar:
I am writing on behalf of HGS Administrators (HGSA) to
apprise you that effective immediately I have advised HGSA
personnel that they need not accept your telephone calls
because you have abused the telephone privilege. HGSA staff
have been advised that until further notice they are flee to
3o N.T. 41-41, 95-101, 169.
31 N.T. 42, 169, 202.
32 N.T. 39.
33 Commonwealth's Exhibit 12;
34 N.T. 39-43.
35 N.T. 41-43.
N.T. 40-41.
5
disconnect any incoming call they receive from you. You are
free to submit any request that can not be resolved through the
use of the HGSA web site or the automated resources that are
available to the provider and supplier community in writing.
We will respond to your written requests within the time
parameters the Health Care Financing Administration (HFCA)
has established for the specific type of inquiry you are making.
HGSA staff have been advised that they are not obligated to
respond to any unreasonable "demands" even if they are
received in a written format.
It is unfortunate that it has become necessary to initiate this
extraordinary measure, but HGSA will not tolerate the abusive
nature in which you have approached our employees. I have
personally corresponded with you on December 1 and
December 8, 2000 on this very issue. Additionally, there have
been telephone conversations where we have touched on this
issue and none of these efforts have successfully persuaded you
to act in a professional manner with HGSA staff. The
inexcusable, profanity laced, voicemail that you left today for a
member of the HGSA secretarial staff was the last item which
prompted this action. In light of your previous unprofessional
verbal actions during your interactions with HGSA personnel,
this inappropriate or abusive behavior will no longer be
tolerated.
Additionally, it has been brought to my attention that you
have also, on occasion, announced that you were going to
come to Highmark Inc. d/b/a HBSA facilities and demand to
see certain HGSA personnel despite the fact that you have had
no meetings scheduled. Given all of the events which have
transpired, your unannounced visits to Highmark at this time
are unwelcome. If you request to meet with HGSA personnel,
please place those requests in writing and HGSA personnel
will evaluate your request and meet with you as appropriate.
Please be advised that I have asked HGSA personnel to
alert our Security Department of any encounters with you that
are abusive or threatening. I have also requested that, upon
receipt of any information of this type or if you arrive at
Highmark facilities uninvited, that the Security Department
6
work with law enforcement as appropriate to protect our
employees from this unnecessary abuse.36
Defendant's response to the directive was to reject it. In a letter faxed
March 5, 2001, to Mr. Walker, he stated, inter alia, "[y]our requests are hereby
denied.''37 As a consequence of this refusal, HGS Administrators contacted the
East Pennsboro Township Police Department to secure its assistance in dealing
with Defendant.3a
According to East Pennsboro Township Police Detective E. Thomas Fry, he
warned Defendant personally on March 7, 2001, of the consequences of further
calls to HGS Administrators:
I advised him that, through our investigation, charges were
being filed against him for harassment by communication, and
that he was not to call Highmark, that we knew he was
informed, and that if he continued to call them, he would be
charged each time he made the call.39
According to Detective Fry, Defendant did not receive the advice
favorably.
Q And what was his response?
A Well, he said he didn't care if we charged him a
hundred times, he was going to do what he wanted to do.
Q And did you actually inform him that charges were
in the mail as you spoke?
A Yes, I did. I did tell him that.
Q And his response was still, he didn't care?
A Right.4°
36 Commonwealth's Exhibit 4.
37 Commonwealth's Exhibit 5.
38 N.T. 264-69.
39 N.T. 264-65, 269.
40 N.T. 270.
7
In a telephone call to Mr. Walker on March 7, 2001, Defendant stated that
4~
he would continue to call and would do so seventy-five times a day if necessary.
A barrage of telephone calls from Defendant, subjecting the female recipients at
HGS Administrators to vituperative and repetitive demands, ensued.42 The
Commonwealth chose to pursue twenty-seven of Defendant's calls as incidents of
harassment by communication or address.43
Among these twenty-seven calls were (a) the call received by secretary
Susan Marie Keim, related above, (b) six calls received by Laura Minter,
supervisor of the medical review office,44 (C) a call received by Elizabeth Dum,
manager of the medical review office and Ms. Minter's immediate superior,45 (d) a
call received by Sally Miller, a secretary in an office of HGS Administrators
known as "provider services," which operated within the division known as
"program management,''46 and (e) a call received by Judy E. Walbom, an
employee who received appeals by telephone in the "appeals area" office, which
operated within the division known as "program management.''47
The call received by Ms. Keim, which contained arguably lewd language in
the form of "no fucking business" and "fucking pisses me off," pronounced her a
"derelict," and ordered her to speak to him, has been previously described.48 The
4~ N.T. 124; Commonwealth's Exhibit 2.
42 See, e.g., Commonwealth's Exhibit 2. The court permitted the Commonwealth to introduce
evidence of uncharged calls prior to March 2, 2001, to support the proposition that the March 2,
2001, directive of HGS Administrators limiting Defendant's communications to those presented
in writing was reasonable; the court did not permit the Commonwealth to introduce evidence of
uncharged calls after March 2, 2001, to support its case. N.T. 157.
43 N.T.
44N.T'
45 N.T.
46 N.T.
47 N.T.
48 N.T.
13, 16-19, 22, 26.
128-34; Commonwealth's Exhibit 3.
223 -27.
249-250; Commonwealth's Exhibit 3.
207-08; Commonwealth's Exhibit 3.
40-42. This call represented Count 1 as received by the jury for purposes of the verdict.
49
six calls received by Laura Minter occurred (a) on March 8, 2001, at 9:40 a.m.,
(b) on March 9, 2001, at 9:15 a.m.,so (c) on March 14, 2001, at 10:53 a.m.,s~ (d) on
March 19, 2002, at 10:30 a.m., s2 (e) on March 20, 2001, at 9:05 a.m.,s3 and (f) on
March 21, 2001, at 4:45 p.m.s4
The call from Defendant received by Ms. Minter on March 8, 2001,
announced that Defendant had not received examples of aberrant billings, which
he had demanded in a call on the previous day, and directed that he receive them
by noon.ss In the call the previous day, he had stated that he refused to abide by
the procedure whereby his communications would be limited to written ones and
had demanded information regarding aberrant billings,s6 an issue dating to the
previous year.s7 The call from Defendant received by Ms. Minter on March 9,
2001, reported that he had still not received the information demanded on March
7, 2001, stated that he would keep calling until he got it, and advised that this
could be considered a threat,sa
The call from Defendant received by Ms. Minter on March 14, 2001,
repeated his demand for information regarding aberrant billings, reiterated his
refusal to comply with the directive that his communications be put in writing, and
told her that she was being subpoenaed for an April 4, 2001, "hearing.''s9 The call
from Defendant received by Ms. Minter on March 19, 2001, duplicated another
49 N.T. 132.
50 N.T. 135.
5~ N.T. 136.
5: N.T. 138.
53 N.T. 141.
54 N.T. 148.
55 N.T. 132.
56 N.T. 131.
57 [cite].
58 N.T. 135.
59 N.T. 136.
This call re
This call re
This call re
This call re
This call re
This call re
>resented Count 2 as received by the jury for purposes of the verdict.
>resented Count 9 as received by the jury for purposes of the verdict.
>resented Count 17 as received by the jury for purposes of the verdict.
>resented Count 18 as received by the jury for purposes of the verdict.
>resented Count 21 as received by the jury for purposes of the verdict.
>resented Count 25 as received by the jury for purposes of the verdict.
9
call from Defendant that morning demanding that certain information be
forwarded to the medicare hearing office in connection with an appeal from the
denial of a Regional Medical Transport claim which was pending in that office.®
The information in question had been requested directly by the hearing officer and
Defendant's input was not required to effect the transfer of the documents.6~
The call from Defendant received by Ms. Minter on March 20, 2001,
demanded that an answer to his calls of the previous day be provided within the
next fifty-five minutes and questioned whether her office was "discarding"
documents.62 The call from Defendant received by Ms. Minter on March 21,
2001, reiterated his demand for a transmittal of information to the medicare
hearing office, accused her of intentional misconduct, and told her to resign by
noon of the following day unless she complied with his instructions.63
Each of these calls by Defendant received by Ms. Minter was in direct and
knowing violation of the procedure that Defendant had been told to follow by
HGS Administrators.64 Each was also in direct and knowing violation of the
instruction given to Defendant by the police.65
The call from Defendant received by Ms. Miller occurred on March 9,
2001, at 1:11 p.m.66 Ms. Miller advised Defendant that her instructions were not
to accept telephone calls from him)? Defendant told her that she "didn't have a
choice," because he would "just call back.''68 The call was in direct and knowing
60 N.T. 140-41.
61 N.T. 138-40.
62 N.T. 141.
63 N.T. 148.
64 See Commonwealth's Exhibit 4.
6s See N.T. 264-69..
66 N.T. 252. This call represented Count 11 as received by the jury for purposes of the verdict.
67 N.T. 253.
68 N.T. 253.
10
violation of the directive of HGS Administrators and the instruction given to
Defendant by the police.69
The call from Defendant received by Ms. Dum occurred on March 13,
2001, at 10:00 a.m.7° Ms. Dum had had dealings with Defendant previously,TM and
he typically spelled her name "Dumb" in written communications.TM The call was
designed to put her in the position of accepting information related to a claim by
telephone in spite of the directive of the company and the instruction of the police
73
to the contrary.
Finally, the call from Defendant received by Ms. Walbom occurred on
March 22, 2001, at 11:25 a.m.TM Ms. Walbom informed Defendant that she could
not respond to his call and that his communications were to be put in writing.75
Defendant refused to accept this position, continued to talk,76 became angry and
agitated, and finally said, "[F]uck you," and slammed down the receiver.77 The
call was in direct and knowing violation of the HGS directive and the police
instruction.78
Complaints were filed by Detective Fry charging Defendant with numerous
counts of harassment by communication or address.79 The complaint relating to
the call received by Ms. Keim alleged that
69 See N.T. 264-69; Commonwealth's Exhibit 4..
7o N.T. 225. This call represented Count 12 as received by the jury for purposes of the verdict.
71 N.T. 224.
72 N.T. 238.
73 N.T. 224-26.
74 N.T. 208. This call represented Count 27 as received by the jury for purposes of the verdict.
75 N.T. 210.
76 N.T. 210-11.
77 N.T. 210.
78 See N.T. 264-69; Commonwealth's Exhibit 4..
79 S~'¢ Police Criminal Complaint, CR-91-01, (Magis. D. 09-1-02 April 4, 2001( (four counts);
Police Criminal Complaint, CR-124-01, (Magis. D. 09-1-02 April 4, 2001 (twenty-nine counts).
11
Defendant, with intent to harass, annoy or alarm, did
communicate to or about victim, with lewd, lascivious,
threatening or obscene words, language, drawings or
caricatures, that is; Defendant did leave a message on the voice
mail of Sue Keim, an employee of Highmark, Inc. in which he
used the word "Fuck" on numerous occasions during the phone
call, in violation of Section 5504(a)(1) of the PA Crimes
Code.so
This language mirrored the current statutory language of Section 5504(a)(1) of the
Crimes Code. S~
Similarly, other charges filed by Detective Fry alleged that other calls made
by Defendant violated current Sections 5504(a)(2) and 5504(a)(4) of the Crimes
Cede.s2 The complaint again mirrored the current statutory language, and stated
with respect to calls alleged to fall within the ambit of Section 5504(a)(4):
Defendant, with intent to harass, annoy or alarm victims, did
communicate repeatedly, that is; Defendant was sent a letter
date 03-02-01 and was [verbally] instructed not to call
Highmark or any of its employees and continued to call
without regard to the letter or verbal communications, in
violation of Section 5504(a)(4) efthe PA Crimes Cede.s3
The information filed by the Commonwealth in the present case charged
Defendant with numerous counts of harassment by communication or ad&ess in
violation of Section 5504 of the Crimes Code. The information included
somewhat archaic language from a former version of the statute:
The District Attorney of Cumberland County, by this
Information[,] charges that on or about or between Friday, the
2nd day of March, 2001, and Friday, the 23rd day of March,
2001, in the said County of Cumberland, Robert Matthew
Sklar, did [commit]... Harassment by Communication or
Address [in that he did,] ... with the intent to harass another,
8o Police Criminal Complaint, No. CR-91-01.
8~ Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. §5504(a)(1) (West 1998 &
Supp. 2001).
82 18 Pa. C.S.A. §5504(a)(2), (4).
83 Police Criminal Complaint, CR-124-01.
12
make a telephone call[,] without intent of legitimate
communication[,] or ad&ess to or about such other person
lewd, lascivious or indecent words or language or
anonymously telephone another person repeatedly; and/or did
repeatedly make such calls anonymously or at extremely
inconvenient hours, or in offensively coarse language. 84
During a colloquy with Defendant at the commencement of trial to
determine that Defendant's waiver of the right to counsel was knowing, intelligent
and voluntary, the elements of the offense of harassment by communication were
recited by the court in the language of the current statute:
Under the statute, which is Section 5504(a) [of the Crimes
Code], a person commits the crime of harassment by
communication or ad&ess when, with intent to harass, annoy
or alarm another, the person, one, communicates to or about
such other person in any lewd, lascivious, threatening or
obscene words, language, drawings or caricatures; or, two,
communicates repeatedly in an anonymous manner; or, three,
communicates repeatedly at extremely inconvenient hours; or,
four, communicates repeatedly in a manner not covered by
paragraphs two or three.85
Upon hearing the language of the statute, Defendant expressed the concern
that the recited portion did not convey the requirement that a given communication
be "without intent of legitimate communication.''86 He noted that both the
information as filed by the Commonwealth and the Pennsylvania Suggested
Standard Criminal Jury Instruction on the offense87 included that wording and
indicated that, in this context, he would agree to the language of the standard
instruction,ss The court then located the portion of the (current) statute to which
84 Information, filed May 15, 2001.
85 N.T. 14.
86 N.T. 14.
87 See Pa. SSJI (Crim) 15.5504 (1975).
88 N.T. 14. The court had earlier in the colloquy indicated its expectation that the jury charge
would be in accordance with the standard jury instructions. N.T. 7.
13
Defendant was referring and placed it on the record as well, to the apparent
satisfaction of counsel for the Commonwealth and Defendant:
Communicates is defined as conveys, without intent of
legitimate communication or address, by written or electronic
means, including telephone, electronic mail, Intemet, facsimile,
telex and similar transmissions. 89
Following the evidentiary phase of the trial, in a discussion outside the
presence of the jury between the court, Defendant and counsel for the
Commonwealth on the subject of jury instructions, Defendant noted a discrepancy
between the standard jury instruction and the statute as presently written.® The
discrepancy involved a reference in the standard jury instruction to "offensively
coarse language," a term not appearing in the present version of the statute.9~
A prior version of the statute had proscribed, inter a/ia, "repeated
communications anonymously or at extremely inconvenient hours, or in
offensively coarse/anguage.''92 It was apparent that the standard jury instruction,
which had been most recently revised in 1975, was based upon the prior statutory
language (as was the information filed by the Commonwealth) and not upon the
current version of the statute.93
Although counsel for the Commonwealth suggested that the instruction to
the jury on the elements of the offense utilize the standard instruction, the court
responded that it would not be proper to "charge [Defendant] with a crime that
doesn't exist, even if it's in the information that way,''94 and advised that the court
could "only instruct the jury on the law as it actually exists.''95 No objection to
89 N.T. 15; see 18 Pa. C.S.A. §5504(f).
90 N.T. 355-57.
91 N.T. 355.
9: N.T. 355; see Act of December 6, 1972, P.L. 1482, §1 (amended 1999) (emphasis added).
93 See Pa. SSJI (Crim) 15.5504 (1975).
94 N.T. 358.
95 N.T. 358.
14
this proposition, which had been inspired by Defendant's notice to the court that
the standard instruction was somewhat inconsistent with the applicable statute,
was made by Defendant.
Prior to instructing the jury, the court made clear to Defendant and counsel
for the Commonwealth that, in the absence of an objection, suggestion or
correction at the conclusion of the charge, it would be assumed that each was
satisfied with the charge as given.96 The instruction as given to the jury on the
elements of harassment by communication or address was in strict accordance
with the current statute:
The Defendant in this case is charged with 27 counts of the
offense of harassment by communication or address, and I am
going to read directly from the statute as to the definition of
that offense. And I'm going to read it twice. A person
commits the crime of harassment by communication or address
when, with intent to harass, annoy, or alarm another person, the
person, one, communicates to or about such other person any
lewd, lascivious, threatening, or obscene words, language,
drawings or caricatures; or, two, communicates repeatedly in
an anonymous manner; or, three, communicates repeatedly at
extremely inconvenient hours; or, four, communicates
repeatedly in a manner not covered by numbers two or three. I
used the term communicates, and I want to define that term as
the statute defines it. Communicates means, conveys without
intent of legitimate communication or address by written or
electronic means including telephone, electronic mail, internet,
facsimile, telex, and similar transmissions.
Now I'll read that one again. A person commits the crime
of harassment by communication or address when, with intent
to harass, annoy or alarm another person, the person, one,
communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings
or caricatures; or, two, communicates repeatedly in an
anonymous manner; or, three, communicates repeatedly at
extremely inconvenient hours; or, four, communicates
repeatedly in a manner not covered by numbers two or three.
Communicates means, conveys without intent of legitimate
96 N.T. 356.
15
communication or address by written or electronic means
including telephone, electronic mail, internet, facsimile, telex,
and similar transmissions.
To be lewd, lascivious or obscene within the meaning of
the harassment by communication statute, the words or
language must be of a sexual nature. The word fuck is not
necessarily lewd, lascivious or obscene. It depends upon the
context in which it is used.97
At the conclusion of the entire charge to the jury, the court asked Defendant
and counsel for the Commonwealth whether either had any suggestions, objections
or corrections with respect to the instructions given to the jury.98 Both replied that
they did nat.99
During its deliberations, the jury requested, inter alia, a reiteration of the
instruction on the elements of the offense of harassment by communication or
address.~°° After the court had reiterated the instruction for the jury, Defendant
seemed to suggest that the outdated standard instruction should be read to the
jury,~°~ which the court declined to da.~°2
Following deliberations, the jury returned verdicts of guilty of harassment
by communication or address with respect to the ten telephone calls related above.
It returned verdicts of not guilty with respect to six other telephone calls, and was
deadlocked with respect to the remaining eleven telephone calls being
prasecuted.~°3
97 N.T. 361-62.
98 N.T. 368.
99 N.T. 368.
~00 N.T. 369, 375.
~0~ N.T. 378-80.
~02 N.T. 380.
~03 Order of Court, January 18, 2002.
16
DISCUSSION
General. Section 5504(a) of the Crimes Code, dealing with harassment by
communication or address, provides as follows:
(a) Harassment by communication or address.--A person
commits the crime of harassment by communication or address
when, with intent to harass, annoy or alarm another, the person:
(1) communicates to or about such other
person any lewd, lascivious, threatening or
obscene words, language, drawings or
caricatures; or
(2) communicates repeatedly in an
anonymous manner;
(3) communicates repeatedly at extremely
inconvenient hours; or
(4) communicates repeatedly in a manner not
covered by paragraph (2) or (3).~°4
For purposes of this provision, "communicates" means "[c]onveys, without intent
of legitimate communication or address, by written or electronic means, including
telephone, electronic mail, Intemet, facsimile, telex and similar transmissions.''~°5
The former version of this statute, which was not applicable to this case,
read as follows:
A person commits a misdemeanor of the third degree if,
with intent to harass another, he:
(1) makes a telephone call without intent of
legitimate communication or addresses to or
about such other person any lewd, lascivious or
indecent words or language or anonymously
telephones another person repeatedly; or
(2) makes repeated communications
anonymously or at extremely inconvenient hours,
or in offensively coarse language. ~06
~04 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. §5504(a). The
amendment which produced the present version of the statute was the Act of December 15, 1999,
P.L. 915, §3.
10s 18 Pa. C.S.A. §5504(f).
17
With respect to instructions to a jury, "[a] trial court has broad discretion in
phrasing its charge and can choose its own wording so long as the law is clearly,
adequately and accurately presented to the jury for its consideration."
Commonwealth v. Myers, 722 A.2d 1074, 1076 (Pa. Super. Ct. 1998) (quoting
Commonwealth v. Hall, 549 Pa. 269, 303, 701 A.2d 190, 207 (1997)),. "[A] trial
court need not accept counsel's wording [in a proposed point for charge], but may
choose its own so long as the 'area is adequately, accurately and clearly presented
to the jury for their consideration.'" Commonrvealth v. Ohle, 503 Pa. 566, 582,
470 A.2d 61, 70 (1983) (quoting Commonwealth v. McComb, 462 Pa. 504, 509,
341 A.2d 496, 498 (1975)).
With respect to the wording of an indictment or information, it is well
settled that a discrepancy will not be deemed fatal "unless it could mislead the
defendant at trial, involves an element of surprise prejudicial to the defendant's
efforts to prepare his defense, precludes the defendant from anticipating the
prosecution's proof or impairs a substantial right." Commonwealth v. Pope, 455
Pa. 384, 391, 317 A.2d 887, 890 (1974), quotedin Ohle, 503 Pa. at 588-89, 470
A.2d at 73; accord Commonwealth v. Kelly, 487 Pa. 174, 178, 409 A.2d 21, 23
(1979); Commonwealth v. Mutzabaugh, 699 A.2d 1289, 1291 (Pa. Super. Ct.
1997); Commonwealth v. Schauffler, 397 Pa. Super. 310, 318, 580 A.2d 314, 318
(1990).
Sufficiency of the evidence. In the present case, the evidence tended to
show, inter alia, that Defendant's conduct in making telephone calls received by
female employees of HGS Administrators was repetitive in the extreme, that the
calls were variously lewd, insulting, to no practical purpose in light of the duties of
the recipients, in violation of company procedures as communicated to Defendant,
and contrary to the direction of police. Viewed in the light most favorable to the
Commonwealth, the evidence amply supported, in the court's view, the guilty
106 Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §5504(a) (amended 1999). For the
language of this version of the statute, see 18 Pa. C.S.A. §5504 historical and statutory notes.
18
verdicts of the jury, including the predicates for the verdicts that Defendant made
the calls without intent of legitimate communication and made them with the
intent to annoy, harass or alarm the recipients.
Failure of court to utilize outdated jury instruction. The complaints in this
case were properly drafted in accordance with the current statute, which was in
effect when the offenses occurred. The elements of the offense of harassment by
communication or address under that statute were identified by the court at the
commencement of the trial for the benefit of Defendant, and the charge of the
court to the jury at the conclusion of the case was in accordance with the elements
as stated and with the statute. The charge as given by the court resulted from
Defendant's noting that the instruction provided in the Suggested Standard Jury
Instructions contained language somewhat different from that of the statute. Given
this background, the court was of the view that the jury instruction, while not in
precisely the words requested by Defendant in response to the jury's request for a
repetition of the earlier instruction, adequately covered the appropriate law.
FFording of information. At no time during these exchanges did the court
perceive that Defendant was requesting that the charges be dismissed because the
language of the information was somewhat archaic when compared to the
applicable statute. Indeed, the former statute (upon which the information was
obviously drafted) was far broader in scope than the present one for purposes of
Defendant's case, because it encompassed "offensively coarse language" and all
calls, whether repetitious or not, made without intent of legitimate communication.
The dated wording of the information did not, in the court's view, prejudice
Defendant or compel a different result in the case.
Under these circumstances, it is believed that the evidence was sufficient to
sustain the verdicts of guilty of harassment by communication or address, that the
court correctly applied the law to the case, and that the judgment of sentence was
properly entered.
19
BY THE COURT,
Michelle H. Sibert, Esq.
Assistant District Attorney
Robert M. Sklar
Defendant, Pro Se
J. Wesley Oler, Jr., J.
20