Com. v. Blum, C. ( 2014 )

J-S68034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER BLUM, :
:
Appellant : No. 632 EDA 2014
Appeal from the Judgment of Sentence entered on January 14, 2014
in the Court of Common Pleas of Carbon County,
Criminal Division, No. CP-13-SA-0000065-2013
BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 26, 2014
Christopher Blum (“Blum”) appeals from the judgment of sentence
imposed after he was convicted of the summary offense of harassment,1
concerning an incident involving the minor victim, E.S.M., Jr. (hereinafter
referred to as “E.”). We affirm.
The trial court set forth the facts and procedural history underlying this
appeal in its Opinion, which we incorporate herein by reference. See Trial
Court Opinion, 4/10/14, at 1-4.2
On appeal, Blum presents the following issues for our review:
1. Whether the [trial c]ourt erred in not dismissing the citation
and sustaining the appeal when the citation stated the date
1
See 18 Pa.C.S.A. § 2709(a)(3).
2
In response to Blum’s Notice of Appeal, the trial court ordered Blum to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
and Blum timely complied.
J-S68034-14
and time of the incident was June 29, 2013[,] at 1:50 PM,
[but] the testimony of the witnesses was that nothing
happened on that date or time[,] and Pa.R[.Crim.P.] 403
mandates that the date and time of the offense be inserted
into the citation?
2. Whether the [trial c]ourt erred in finding [Blum] guilty
when [he] was charged with [] harassment [] under section
2709(a)(3) of the [C]rimes [C]ode[,] which charged a
continuing course of conduct[,] but the testimony produced
was regarding a single incident and not even on the date
and time contained in the citation?
3. Whether the [trial c]ourt unfairly prejudiced [Blum] by
asking [E.] to identify [Blum] after the Commonwealth
failed to do so in direct testimony?
4. Whether the Commonwealth met its burden of proving each
element of the charge beyond a reasonable doubt?
Brief for Appellant at iv.
Blum first argues that the trial court should have dismissed the charge
because the citation was defective as it did not set forth the actual date of
the commission of the alleged offense,3 in violation of Pennsylvania Rule of
Criminal Procedure 403(A)(4).4 Id. at 7-11. Although Blum concedes that
“[a]ctual prejudice to a defendant [] is required before a summary case can
be dismissed for defects to the citation,” id. at 8-9 (citing Commonwealth
3
It is undisputed that the citation was defective in this regard. The record
reflects that the police officer who prepared the citation wrote thereon that
the offense occurred on June 29, 2013, the date on which the officer took a
written statement from E. In actuality, the offense had occurred a few days
prior.
4
Rule 403(A)(4) provides that “[e]very citation shall contain … the date and
time when the offense is alleged to have been committed, provided
however, if the day of the week is an essential element of the offense
charged, such day must be specifically set forth[.]” Pa.R.Crim.P. 403(A)(4).
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v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997)), he argues that he
was actually prejudiced by this defect and the charge should have therefore
been dismissed. See Brief for Appellant at 10-11. Specifically, Blum
summarizes his somewhat confusing claim of prejudice as follows:
In reviewing the citation as a whole, not only is the wrong
date and time inserted per the Commonwealth’s own
testimony[,] but the citation itself in charging Harassment[,
which,] pursuant to Section 2709(a)(3) of the Crimes Code[,] []
requires a course of conduct of an accused, states in the section
of the citation put there to describe the nature of the unlawful
actions that “To wit[, Blum] did harass, annoy or alarm another
and engage in a course of conduct or repeatedly commit acts
which serve no legitimate purpose.” [Criminal Citation,
6/29/13.] According to the Commonwealth, [Blum] …
committed an action on a different date and time than as is
alleged in the citation[. Also, the Commonwealth] alleged a
course of conduct but then refers to one date and time but later
argues that the conduct occurred over a period of time[,] which
is not contained in the citation[,] and for actions which are not
specified. Certainly, the notice requirements of the nature of the
charge filed against [Blum] have not been met. There is [] no
possible way that any person could be apprised of the nature of
actions described in this citation.
Id.
In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly addressed
Blum’s claim, discussed the applicable law, and determined that Blum was
not prejudiced by the defective citation and, therefore, not entitled to
dismissal of the charge. See Trial Court Opinion, 4/10/14, at 5-10. We
agree with the trial court’s sound rationale and affirm on this basis with
regard to Blum’s first issue. See id.
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Next, Blum contends that his conviction of harassment cannot stand
because that offense requires proof of a “course of conduct,” but, in the
instant case, E. testified that there was only one harassing incident between
him and Blum. See Brief for Appellant at 11-12.
The crime of harassment is defined at 18 Pa.C.S.A. § 2709, 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
… engages in a course of conduct or repeatedly commits acts which serve no
legitimate purpose[.]” 18 Pa.C.S.A. § 2709(a)(3) (emphasis added)). The
statute defines the term “course of conduct” as “[a] pattern of actions
composed of more than one act over a period of time, however short,
evidencing a continuity of conduct.” Id. § 2709(f) (emphasis added); see
also Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super. 2002)
(stating that “a single act will not constitute a course of conduct under the
definition of harassment.”). This Court has “explained that course of
conduct by its very nature requires a showing of a repetitive pattern of
behavior.” Commonwealth v. Leach, 729 A.2d 608, 611 (Pa. Super.
1999) (citation and quotation marks omitted); see also Commonwealth v.
Duncan, 363 A.2d 803, 805 (Pa. Super. 1976) (stating that “[section] 2709
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requires repetition of the offensive conduct.” (emphasis in original)).5
In the instant case, once Blum had E. in his apartment, he went into
the kitchen to cook some food for E. N.T., 1/14/14, at 11-12. Blum
retrieved a package of sausages from the refrigerator, opened his pants
zipper, placed one of the sausages in the opening, and said to E., “Is it
bigger than yours or bigger than mine?” Id. Blum then said to E., “You
want to bite it off?” Id. at 12. E. replied in the negative. Id. Blum then
stated to E., “You’re sleeping here tonight[,]” to which E. replied “No, I’m
not[.]” Id. Blum persisted, stating, “You can sleep in my bed.” Id. E.
again replied “No.” Id. Blum’s entreaties did not cease until E. left the
apartment. Id. E. testified that Blum’s conduct made him feel embarrassed
and uncomfortable. Id.
In the apartment, Blum repeated his lewd and offensive conduct,
despite E.’s unequivocal statements that he did not wish to remain with
Blum or sleep with him. See Leach, 729 A.2d at 611 (stating that a course
of conduct can be established by a repetitive pattern of behavior); see also
5
Recently, an en banc panel of this Court, in Commonwealth v. Kelly,
2014 Pa. Super. 243 (Pa. Super. 2014), engaged in a detailed analysis of the
meaning of the phrase “course of conduct” as used in the grading provision
of the corruption of minors statute, and held that “the use of the phrase
‘course of conduct’ in the first provision of [the statute] imposes a
requirement of multiple acts over time, in the same manner in which the
term is used in the harassment … statute[].” Id. at *14; see also id. at
**16-17 (holding that the appellant could not properly be convicted of the
felony grading of corruption of minors because the appellant’s prohibited
touching of the minor victim’s genitals constituted only a single prohibited
act, and not a course of conduct).
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Trial Court Opinion, 4/10/14, at 11 (stating that “[i]n reviewing [E.’s]
testimony, it is established that [Blum] continued the conduct even after it
was obvious that [E.] was becoming increasingly uncomfortable. The
conduct only ceased after E[.] stated that he wanted to leave and returned
home.”). This Court has held that “speaking can constitute a course of
conduct within the meaning of the [harassment] statute, given the proper
circumstances[.]” Duncan, 363 A.2d at 805 (holding that the appellant’s
conduct in repeatedly urging the victim to engage in unwanted sexual
conduct with him, despite her repeated refusals and asking the appellant to
leave, constituted a “course of conduct” that alarmed the victim); see also
id. (stating that “[the victim’s] replies made it clear, or should have made it
clear to a reasonable person, that continued entreaties would be offensive to
her.”). We conclude that the circumstances presented in the instant case
establish that Blum engaged in a course of conduct of harassing E. See id.;
see also Lutes, 793 A.2d at 961 (where the appellant and his co-defendant
confronted the victim outside of his workplace, blocked his path, and
repeatedly threatened to fight him, despite the victim’s requests to be left
alone, holding that this constituted a “course of conduct” for the purpose of
the appellant’s harassment conviction). Accordingly, Blum’s second issue
lacks merit.
In his third issue, Blum asserts that the trial court erred and unfairly
prejudiced him by asking E. to identify Blum for the record at the trial de
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novo, when the Commonwealth had failed to ask E. to identify Blum during
direct examination. See Brief for Appellant at 12-13 (arguing that the trial
court judge’s “insertion of himself into the proceedings by asking such a
question on such a fundamental issue unfairly … prevented [Blum] from
having a fair and impartial trial[.]”).6
In its Opinion, the trial court addressed this claim and the applicable
law, and determined that it did not err by asking E. to identify Blum for the
record because it did not prejudice Blum. See Trial Court Opinion, 4/10/14,
at 11-12. We affirm based on the trial court’s analysis concerning this issue.
See id.
Finally, Blum argues that the evidence was insufficient to find him
guilty of harassment beyond a reasonable doubt because (1) E. never
testified that he was annoyed or alarmed by Blum’s alleged conduct; rather,
E. only testified that he felt embarrassed and uncomfortable; and (2) the
Commonwealth failed to establish that Blum’s actions constituted a
continuing course of conduct. See Brief for Appellant at 13-14.
The trial court addressed this claim in its Opinion and determined that
Blum had waived it because Blum’s “[Rule 1925(b) C]oncise Statement did
not specify any elements of harassment nor did it address what evidence
[Blum] was challenging as insufficient for the Commonwealth to have met its
6
Blum concedes that he did not object to the trial court judge asking E. to
identify Blum. Brief for Appellant at 13.
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burden of establishing the elements of the crime.” Trial Court Opinion,
4/10/14, at 13.
This Court has stated that “when challenging the sufficiency of the
evidence on appeal, the [a]ppellant’s [court-ordered Rule 1925(b) concise]
statement must specify the element or elements upon which the evidence
was insufficient in order to preserve the issue for appeal.” Commonwealth
v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citations and quotation
marks omitted); see also Pa.R.A.P. 1925(b)(4)(ii) (providing that “[t]he
Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for
the judge.”). If the appellant does not specify such elements, the sufficiency
claim is deemed waived. Gibbs, 981 A.2d at 281.
Here, we agree with the trial court that Blum waived his sufficiency
challenge based on his vague sufficiency challenge in his Concise Statement.
However, even if this claim was not waived, we would conclude that the
evidence was sufficient to convict Blum of harassment beyond a reasonable
doubt. Specifically, we have already determined that Blum’s actions toward
E. constituted a continuing course of harassing and lewd conduct, and that
the conduct only ceased when E. announced his desire to return home.
Moreover, we are unpersuaded by Blum’s claim that E.’s failure to
specifically state that he was annoyed and/or alarmed by Blum’s conduct
meant that the Commonwealth did not prove the intent element of the
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offense, and observe that Blum concedes that “it is not necessary to say
magic words to get the requisite intent[.]” Brief for Appellant at 14; see
also Commonwealth v. Melvin, 2014 Pa. Super. 181, at *83 (Pa. Super.
2014) (stating that “[t]he Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
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.\ .
IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
vs. No. SA-065-2013
CHRISTOPHER R. BLUM,
Defendant
Jean A. Engler, Esquire Counsel for Commonwealth
Assistant District Attorney
Robert T. Yurchak, Esquire Counsel for Defendant
MEMORANDUM OPINION
Serfass, J. - April 10, 2014
Defendant, Christopher R. Blum (hereinafter "DefendantU),
has taken this appeal from his conviction on one (1) count of
the summary offense of harassment 1 following a trial de novo held
on January 14, 2014. Defendant .was sentenced to pay the costs
of prosecution and a fine of one hundred dollars ($100.00). We
file the following memorandum opinion in accordance with
Pennsylvania Rule of Appellate Procedure 1925 (a) and recommend
that our Order of Sentence entered on January 14, 2014 be
affirmed for the reasons set forth hereinafter.
FACTUAL AND PROCEDURAL BACKGROUND
On June 29, 2013, Trooper Martin Bibla (hereinafter
"Trooper Bibla U) met with and his father
regarding an incident that had taken place a few days prior
1 18 Pa.C.S.A. §2709(a) (3)
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thereto. (N.T., 1/14/2014, p. 17). At that time, Trooper Bibla
took a written statement from (Id. at
17). Upon completing the investigation, Trooper Bibla issued a
citation directed to the defendant,
count of harassment. The victim was
(hereinafter " E . ) .
charging him with one
identified as E_ (1)
On October 10, 2013, a hearing was conducted by Magisterial
District Judge Edward M. Lewis and Defendant was found guilty of
the aforesaid offense. The Magisterial District Court entered
judgment against the defendant and imposed fines totaling one
hundred dollars ($100.00). On November 7, 2013, the defendant
filed a "Notice of Appeal from Summary Criminal Conviction" with
this Court.
A trial de novo was held before the undersigned on January
14, 2014. It was established during the trial that EIII, a
thirteen (13) year old boy , lived with his mother in the Fort
Allen apartment building located at 401 Bridge Street,
Weissport, Pennsylvania. (Id. at 9). Christopher Blum
manager. E.
(hereinafter "Defendant") was employed as the apartment building
stated that
courtroom and later identified him to be Christopher Blum.
the defendant was in the
(Id.
at 9,
citation,
months
16).
and
E. had
At the time of the
had lived in the apartment
been to Defendant's
incident
apartment
referenced
building for
several
in
a
times.
the
few
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("
(rd. at 10). They had interacted often during the time he lived
in the building. (rd. )
BIll testified that a few days prior to June 29, 2013, he
had an argument with his mother and ran out of the apartment
building. (rd. at 13, 15). He ran into the street screaming
profanities
Defendant
and was attempting to
attempted to calm E. "get hit by a
down.
stated that he did not want to return to his mother's apartment.
(rd. at
car".
24).
(rd. )
Eric
Defendant invited him to his apartment to "chill out for
a little bit." (rd. at 24) .
Ell was sitting on the couch when Defendant asked him if
he was hungry. (rd. at 11). Defendant went into the kitchen
and removed a package of hot dogs from the freezer. (rd. at
12). Defendant then placed one of the hot dogs in his zipper.
Defendant said "is it bigger than yours or bigger than
mine?" (rd. ) He then said "you want to bite it off?" and Eric
responded "no". (rd. ) He asked if Ell was going to spend the
night. (rd. )
could sleep in his bed.
stated that he
Eric said "no" .
felt
(rd. )
embarrassed by the
E.
(rd. ) He told
said "no".
E. that
(rd. )
comments and questions
he
Defendant asked. (rd. ) He went back upstairs to his apartment
and, in the morning, told his mother what had happened. (rd. )
Defendant's testimony conflicts with ~'s recollection of
the incident that took place in Defendant's apartment.
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Defendant stated that after they went back to his apartment, he
asked EIII if he was hungry. (Id. at 24). EIII stated that he
was hungry and Defendant went to retrieve hot dogs from the
freezer. (Id. )
dogs near his navel area so
how many he wanted to eat.
E.
Defendant then claimed that he placed the hot
(Id. )
could see them and asked him
Defendant stated that •
started to fall asleep on the couch and told Defendant that he
"just want [ed] to go back upstairs" to his mother's apartment.
(Id. at 25) .
DISCUSSION
In his "Concise Statement of Matters Complained of on
Appeal," Defendant alleges that we erred in the following
respects:
1. By not dismissing the citation and sustaining the appeal
based upon a defective citation which failed to comply with
Pennsylvania Rule of Criminal Procedure 403 concerning the date
and time of the incident at issue;
2. By finding the defendant guilty when the defendant was
charged with harassment under 75 Pa.C.S.A. §2709(a) (3) which
requires a continuing course of conduct;
3. In questioning the victim regarding the identity of the
defendant; and
4. In determining that the Commonwealth had met its burden
of proving each element of the charge beyond a reasonable doubt.
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We will address each of Defendant's contentions seriatim.
Ie Defective citation did not Prejudice Defendant
At the trial de novo, Defendant's counsel objected to the
citation and moved for dismissal of the charge on the basis that
the evidence presented did not demonstrate that any criminal
conduct occurred on June 29, 2013, the date of the offense as
listed on the citation. Pennsylvania Rule of Criminal Procedure
109 provides that "a Defendant shall not be discharged nor shall
a case be dismissed because of a defect in the form of a
complaint, citation, summons, or warrant, or a defect in the
procedures of these rules unless the Defendant raises the defect
before the conclusion of the trial in a summary case ... and the
defect is prejudicial to the rights of the Defendant." The
requirements for a criminal citation are set forth at
Pennsylvania Rule of Criminal Procedure 403 and include "the
date and time when the offense is alleged to have been
committed." Pa.R.Crim.P. 403(A) (4). Thus, in this case, the
"defect" identified by Defendant is that the citation indicates
that the offense occurred on June 29, 2013, when in fact the
testimony presented at the trial shows that the citation relates
to incidents that occurred several days prior thereto.
We agree that the citation in this case is defective,
in that it does not contain the actual date of the commission of
the offense pursuant to Pennsylvania Rule of Criminal Procedure
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{. \
403(A) (4). We note that the purpose of the citation is to set
forth the essential elements of a summary offense so that the
defendant has fair notice of the nature of the charges and can
properly prepare a defense. Commonwealth v. Borriello, 696 A.2d
1215, 1217 (Pa. Commw. ct. 1997). Therefore { the issue becomes
whether this defect has prejudiced the rights of Defendant in
denying him sufficient notice of the charge against him{ as well
as an opportunity to defend himself against that charge.
"Due process requires that notice be given to the accused
of the charges pending against him." Goldberg v. Commonwealth
of Pa., state Bd. of Pharmacy{ 410 A.2d 413{ 415 (Pa. Commw. ct.
1980). The citation need only show "a summary of the facts
sufficient to advise the defendant of the nature of the offense
charged{ notifying him of the pending prosecution and affording
him a chance to defend himself." Commonwealth v. Frye, 516 A.2d
38, 43 (Pa. Super. 1986). The description of an offense on
the citation is adequate so long as the defendant is made aware
of the nature of the charge. rd. Prejudice will not be
established where a defendant may be informed of the nature of
the offense through prior events and interactions that may have
taken place prior to the issuance of the citation. Commonwealth
v. Famiano{ 915 A.2d 1273, 1275 (Pa. Commw. Ct. 2007). Where a
defendant cannot show prejudice, the charges will not be
dismissed due to the defect. rd. Moreover, in situations where
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a summary citation is defective, prejudice to the defendant will
not result where the content of the citation, taken as a whole,
prevented surprise as to the nature of the summary offense of
which [the] defendant was found guilty at trial, .,. or the
omission does not involve a basic element of the offense
charged. Borriello, supra, at 1217.
The citation issued by Trooper Bibla was dated June 29,
2013. The witnesses testified that the incident had taken place
several days prior to the date the citation was issued.
Defendant cannot claim surprise. Defendant cannot establish
that he did not have sufficient notice of the allegations
against him or that he did not have the opportunity to
adequately prepare a defense. The citation was dated and issued
only a few days after the incident between EIII and the
defendant. Defendant should be aware of the nature of the
offense due to the close proximity in time of the date of the
citation and the interaction with Eric that took place prior to
the citation being issued. Furthermore, Defendant was provided
a written witness statement prior to the trial. N.T.,
1/14/2014, p. 4,6. The date and time of the witness statement
was recorded as June 29 2013 at 1:50.pm, the same date and time
as the citation. Id. at 6. Defendant retained counsel to
assist in preparing his defense. Defendant contacted witnesses
to testify on his behalf regarding the incident at both the
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summary proceeding in magisterial district court and the trial
de novo before this Court.
Clearly, the defendant was not prejudiced as a result of
the inaccurate date set forth on the citation. Unless a
particular date or day of the week is an essential element of
the offense, the Commonwealth is not required to prove that the
offense was committed on the date set forth in the citation2 •
Commonwealth v. Devlin, 333 A.2d 888, 890 (Pa. 1975). However,
the Commonwealth must prove that the offense was committed on
another reasonably certain date within the prescribed statutory
period 3 • Id. In matters where a child is the alleged victim,
"the Commonwealth must be allowed a reasonable degree of
flexibility ... in ascertaining the date of [a crime] against a
young child." Commonwealth v. Groff, 548 A.2d 1237, 1241 (Pa.
Super. 1988). Defendant's due process rights will not be
violated where the Commonwealth makes "a conscientious effort to
present evidence as to the date of the crime from witnesses
other than the victim" and restricts the date to a reasonable
time period. Id. at 1243.
During the trial, the Commonwealth presented evidence which
established that the incident took place only a few days prior
2 A person commits the crime of harassment when, with intent to harass, annoy
or alarm another, the person engages in a course of conduct or repeatedly
commits acts which serve no legitimate purpose.
3 Pursuant to 42 Pa.C.S.A. §5552(a), a prosecution for harassment must be
commenced within two (2) years after the commission of the crime.
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to the issuance of the citation. EIII is a thirteen (13) year
old boy who felt uncomfortable about his interaction with the
defendant. N.T., 1/14/2014, p. 9, 12. He waited until the next
day to tell his mother about Defendant's actions. rd. at 12.
The incident was reported to Trooper Bibla on June 29, 2013 and
the citation was issued on that same date. rd. at 17-18. The
Commonwealth was able to prove that there was a reasonably short
time period between the incident and the citation being issued.
Defendant should have been aware of the nature and events
surrounding the citation due to his previous interaction with
Eric.
Accordingly, Defendant has failed to establish that he
was prejudiced due to the defective citation. Under Devlin, the
Commonwealth does not need to prove that Defendant committed an
offense on June 29, 2013, the date listed in the citation, for
Defendant to be lawfully convicted of the offense of harassment
because the date of the commission of that offense is not an
essential element of the offense. Thus, the Commonwealth has
clearly met its burden to prove beyond a reasonable doubt that
Defendant committed the offense of harassment on a date which is
reasonably certain and within the prescribed statutory period.
Furthermore, because Defendant cannot demonstrate unfair
surprise or show that he was otherwise unable to prepare a
defense, the variations between the citation and the evidence
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presented at trial do not represent a violation of Defendant's
due process rights. Subsequently, the evidence presented was
sufficient to support the defendant's conviction on a summary
charge of harassment.
II. Continuing Course of Conduct
A person commits the crime of harassment when, with the
intent to harass, annoy, or alarm another, the person engages in
a course of conduct or repeatedly commits acts which serve no
legitimate purpose. 18 Pa.C.S.A. § 2709(a) (3). A "course of
conduct" is defined as "a pattern of actions composed of more
than one act over a period of time, however short, evidencing a
continuity of conduct." 18 Pa.C.S.A. §2709(f). The intent to
commit harassment may be inferred from the totality of the
circumstances. Commonwealth v. Beck, 441 A.2d 395, 398
(Pa.Super. 1982). Under the proper circumstances, speaking may
constitute a continuing course of conduct within the meaning of
the statute when a person repeatedly engages in conversation
with the intent to alarm, harass or annoy another person.
Commonwealth v. Duncan, 363 A.2d 803, 805 (Pa. Super. 1976)
In the instant case, the victim was thirteen (13) years old
and was clearly distraught following a heated argument with his
mother. The argument caused him to run out into the street in
an attempt to be struck by an automobile. N.T., 1/14/2014, p.
13. The defendant invited EIII into his home to calm down and
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(
sleep over if he wanted. Id. at 24. Defendant then proceeded
to make inappropriate comments and gestures towards ElIJ/causing
him to feel uncomfortable. Id. at 12. EIII repeatedly answered
Defendant's questions negatively and grew increasingly
uncomfortable. Id. Defendant testified that EIII left the
apartment and returned home before he had eaten dinner. Id. at
30.
In reviewing the testimony, it is established that
Defendant continued the conduct even after it was obvious that
the child was becoming increasingly uncomfortable. The conduct
only ceased after EIII stated that he wanted to leave and
returned home. Id. at 12. The defendant's repetitive
questions, lewd comments and gestures establish a continuing
course of conduct as defined in the statute.
III. The Court's Questioning of witness
The judge shall interrogate a witness when he conceives
that justice would so require. Commonwealth v. Purcell, 589
A.2d 217, 223-24 (Pa. Super. 1991). A judge is permitted to
question a witness when an important issue needs to be
clarified. Id. at 224. A defendant may be prejudiced if the
judge indicates any bias or feelings during the course of
questioning. Commonwealth v. Manuel, 844 A.2d 1 (Pa.Super.
2004) . A party may object to the court's examining of a
witness during questioning. Pa.R.E. 614(c). If a party does
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not timely object, they fail to preserve that issue for
appellate review. Commonwealth v. Smith, 606 A.2d 939 (Pa.
Super. 1992).
Defendant's counsel did not object when the Court asked
EIII to identify Christopher Blum in the courtroom. N.T.,
1/14/2014, p. 16. By not timely objecting, Defendant failed to
preserve the issue on appeal. However, even if the defendant
had preserved the issue, there would be no finding of prejudice.
As trier of fact, the Court is permitted to clarify an important
issue, such as the identification of the defendant. The
following exchange between the assistant district attorney and
EIII had occurred earlier in the trial:
Q: And,~, do you know Chris Blum?
A: Yes.
Q: Is he in court today?
A: Yes.
N.T., 1/14/2014, p. 9. We later asked EIII to identify
Christopher Blum in order to clarify that he was the defendant.
This question by the Court does not indicate any bias or
feelings towards the witness and does not prejudice the
defendant.
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(.
IV. The Commonwealth's Burden to Establish the Elements of the
Crime
"If [an] [a]ppellant wants to preserve a claim that the
evidence was insufficient, the 1925(b) statement needs to
specify the element or elements upon which the evidence is
insufficient." Commonwealth v. Williams, 959 A.2d 1252, 1257
(Pa. Super. 2008). Pennsylvania Rule of Appellate Procedure
1925(b) is to be applied "in a predictable, uniform fashion, not
in a selective manner dependent on an appellee's argument or a
trial court's choice to address an unpreserved claim." Id.
When a defendant fails to specifically list the reasons in which
he believes the evidence was insufficient to sustain the charges
for which the defendant was found guilty, a situation is created
in which the claims of the appellee are too ambiguous to be
addressed by the trial court. Id. at 1258. Where a defendant
does not set forth the elements of the crime for which he is
convicted or address the specific elements that were not met,
the claim is waived. Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa. Super. 2009).
Defendant's concise statement did not specify any elements
of harassment nor did it address what evidence it was
challenging as insufficient for the Commonwealth to have met its
burden of establishing the elements of the crime. Therefore,
Defendant has waived any contention that the Commonwealth failed
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(
to meet its burden of "proving each element of the charge beyond
a reasonable doubt."
CONCLUSION
Based upon the foregoing, we respectfully recommend that
Defendant's appeal be denied and that our Order of Sentence
entered on January 14, 2014 be affirmed accordingly.
BY THE COURT:
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Steven R.
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CODED
[FS-14-14]
14 APR 1 0 2014