Com. v. Gravatt, D. ( 2018 )

J-S40039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD GRAVATT, JR. :
:
Appellant : No. 2231 EDA 2017
Appeal from the Judgment of Sentence May 30, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0008237-2015
BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 06, 2018
Donald Gravatt, Jr., appeals from the judgment of sentence, entered in
the Court of Common Pleas of Montgomery County, following his bench trial
where he was found guilty of terroristic threats,1 harassment2, and stalking.3
Gravatt was sentenced to time-served to 23 months’ imprisonment, plus three
years’ probation for the terroristic threats conviction, one year of probation
for the harassment conviction, and a concurrent probationary term of three
years for stalking. After careful review, we affirm in part, vacate in part, and
remand.
____________________________________________
1 18 Pa.C.S. § 2706.
2 18 Pa.C.S. § 2709.
3 18 Pa.C.A. § 2709.1.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40039-18
This case involves a long-standing feud among neighbors. The
underlying facts, which recount various volatile arguments among Gravatt and
his neighbors over eleven years, are succinctly set forth in the trial court’s
opinion and do not bear repeating. See Trial Court Opinion, 9/14/17, at 1-4.
Quite frankly, this is a classic case of “he-said/she-said” that boils down to
credibility determinations made by the fact finder at trial. Instantly, the trial
court discredited Gravatt’s trial testimony, thus resulting in a guilty verdict on
all charges.
Gravatt filed timely post-sentence motions that were denied by the trial
court. He filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)
concise statement of matters complained of on appeal. Gravatt raises the
following issues for our review:
(1) Did the trial court err in allowing the Commonwealth to
introduce a defense witness’ 20-year-old crimen falsi
conviction?
(2) Is the evidence insufficient to sustain the verdict of guilt
because the Commonwealth failed to prove beyond
reasonable doubt that [Gravatt] made a threat or that any
remarks he made were spoken with the specific intent
required by 18 Pa.C.S. § 2706?
(3) Is the evidence insufficient to sustain the verdict of guilt
because the Commonwealth failed to prove beyond a
reasonable doubt that [Gravatt] engaged in any of the
behaviors proscribed by 18 Pa.C.S. § 2709 or that he
engaged in conduct with the intent to harass, annoy, or
alarm the complainant?
(4) Is the evidence insufficient to sustain the verdict of guilt
because the Commonwealth failed to prove beyond a
reasonable doubt that [Gravatt] engaged in any of the
behaviors proscribed by 18 Pa.C.S. § 2709.1 or that he
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J-S40039-18
engaged in conduct with the intent to place another person
in reasonable fear of bodily injury or to cause substantial
emotional distress?
(5) Is the verdict against the weight of the evidence because all
of the witnesses provided biased, self-serving testimony and
there was no reason to believe one witness any more than
another?
(6) Did the sentencing court fail to put specific reasons on the
record supporting the imposition of an aggravated
consecutive sentence?
(7) Did the sentencing court err in imposing sentences for both
stalking and harassment because harassment is a lesser
included offense of stalking and thus the sentences merged?
Appellant’s Brief, at 6-7.4
After a careful review of the briefs on appeal, the certified record, and
relevant case law, we conclude that the trial court correctly disposes of
Gravatt’s first five issue raised on appeal. Thus, we rely upon the trial court’s
Rule 1925(a) opinion to dispose of those issues. See Trial Court Opinion,
9/14/17, at 5-16.5
Gravatt next claims that the court abused its discretion in imposing an
aggravated consecutive sentence without placing specific reasons on the
record to support such a sentence. We find this claim waived.
____________________________________________
4Although Gravatt raises a Pa.R.Crim.P. 600 motion issue in his Rule 1925(b)
concise statement, he has abandoned that issue in his appellate brief. Thus,
we decline to address it.
5We instruct the parties to attach a copy of the trial court opinion in the event
of further proceedings in the matter.
-3-
J-S40039-18
Gravatt’s claim goes to the discretionary aspects of his sentence.
Pennsylvania Rule of Appellate Procedure 2119(f) explicitly requires that:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence. The statement
shall immediately precede the argument on the merits with
respect to the discretionary aspects of sentence.
Pa.R.A.P. 2119(f) (emphasis added). Gravatt has failed to include a separate
statement in his brief pursuant to Rule 2119(f). The Commonwealth has
objected to its omission. See Commonwealth v. Anderson, 830 A.2d 1013
(Pa. Super. 2003). Thus, we are precluded from reaching the merits of the
claim. Commonwealth v. Hudson, 820 A.2d 720 (Pa. Super. 2003).
Finally, Gravatt claims that his sentence is illegal because the crime of
harassment merges with the crime of stalking for sentencing purposes.
A claim that crimes should have merged for sentencing purposes raises
a challenge to the legality of the sentence. Commonwealth v. Quintua, 56
A.3d 399, 400 (Pa. Super. 2012) (citation omitted). Our Judicial Code states
that
[n]o crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher
graded offense.
42 Pa.C.S. § 9765 (emphasis added). With regard to the crimes of
harassment and stalking, this Court has determined that “one can harass
without stalking, but one cannot stalk without also harassing. Stalking is
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simply a more serious form of harassment.” Commonwealth v. Reese, 725
A.2d 190, 192 (Pa. Super. 1999). Thus, harassment is a constituent offense
of stalking. Id.
Here, Gravatt’s sentence includes probation for both his stalking and
harassment convictions; his stalking sentence was ordered to run concurrent
to his terroristic threats’ sentence, while his harassment sentence was ordered
to run consecutive to his terroristic threats’ sentence of incarceration.
Moreover, his harassment charge is based upon the same criminal act as his
stalking charge. Therefore, his harassment conviction merges into the
correlated stalking conviction. Thus, we must remand to the trial court so
that it can sentence Gravatt based upon the stalking conviction only. See 42
Pa.C.S. § 9765.6
Judgment of sentence for terroristic threats affirmed. Judgments of
sentence for stalking and harassment vacated. Case remanded for
____________________________________________
6 We decline to accept the trial court’s suggestion that “the sentence for
[s]talking can be vacated without upsetting the overall sentencing structure.”
Trial Court Opinion, 9/14/17, at 22. While Gravatt’s probationary sentence
for stalking was ordered to run concurrent to his terroristic threats’ sentence,
it does not change the fact that harassment is the lesser-included offense,
and, thus, it is that crime that merges into the stalking crime and should be
vacated. Moreover, because the court only sentenced Gravatt to one year of
probation for harassment versus three years of probation for stalking, we
cannot conclude that merger would not upset the sentencing scheme.
Commonwealth v. Williams, 871 A.2d 254 (Pa. Super. 2005) (if appellate
court's disposition upsets overall sentencing scheme of trial court, it must
remand so that court can restructure sentence plan).
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J-S40039-18
resentencing consistent with the dictates of this decision. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/18
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Circulated 07/12/2018 02:37 PM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA No. CP-46-CR-0008237-2015
v.
2231 EDA 2017
DONALD GRAVATT
OPINION
Page, J. September 14, 2017
Defendant appeals from this Court's Judgement of Sentence on May 30, 2017. For the
reasons set forth below, Defendant's appeal is without merit. Therefore, any claim of error on the
part of this Court should be dismissed and the ruling should be affirmed.
FACTS AND PROCEDURAL HISTORY
The Defendant was arrested and charged with Terroristic Threats, Stalking, and
Harassment. The Commonwealth alleged that the Defendant had threatened the victims and
engaged in a course of conduct which threatened and harassed the victims. At trial, one of the
complainants, Bridget Liczbinski, testified that her family lived next door to the Defendant and
their homes shared a driveway. NT. Trial Day I p. 18. Within a month of moving into the home,
the Defendant called the police because he did not approve of the amount of cars the Liczbinskis
had in the driveway. Id. In 2011, there was an incident where the Defendant shoveled snow onto
their half of the driveway, and there was an argument where the Defendant shoved Mr.
Liczbinski. Id. at 20-21: Mr. Liczbinski responded by punching the Defendant. Id. Mr.
Liczbinski's testimony was consistent with Mrs. Liczbinski's testimony regarding this incident.
Id at 112. The Defendant told Mr. Liczbinski that he would "get it like your dad did." Id at 22.
1
Mr. Liczbinski' s father had been killed in the line of duty in May 2008 while employed as a
Philadelphia Police Sergeant. Id at 23. As a result of the incident, both parties were ordered to
mediation, but the Defendant was unhappy with it and requested to go to Court. Id at 24. Both
men were told that the charges would go away if they didn't have another incident within a year.
Id. at 24-25. After that, the Defendant continued to yell at the Liczbinskis. Id. at 25. In May
2014, there was an incident where the Defendant recorded the Liczbinskis and their two children
playing hockey in the driveway, and when he moved his car into the driveway he almost hit one
of the children. Id at 27-28. On April 16, 2015, the police were called again when the Defendant
was playing a vulgar program through the window while the Liczbinski children were in the
driveway. Id. at 30-31. Officer Doyle corroborated that when she responded to that call she could
hear the program from the driveway, and the program was using expletives like "fuck." Id. at 86.
On October 10, 2015, the Liczbinskis were watching a movie and heard yelling from
outside. Id at 35. When they looked outside, the Defendant was yelling at Mr. Liczbinski
"calling him a pussy" and saying to come "fight me like a man." Id. at 36. The Defendant also
told Mr. Liczbinski that "his boys were coming up to get me that his boys had been there to come
get me." Id at 130. Mr. Liczbinski went outside and told the Defendant that he was right there if
the Defendant wanted to hit him. Id. Eventually, both Mr. Liczbinski and the Defendant went
back inside their respective homes. Id. Finally, on October 16, 2015, Mrs. Liczbinski was leaving
to pick up her children and when she walked past the Defendant she hear him say "he's lucky
he's at work now, you know, now that I'm here with my boy[ ... ] we'll wait for him [ ... ]that
motherfucker is going to find out tonight when he gets home. We'll be waiting for him. We're
going to kill that motherfucker tonight." Id at 39-40. The youngest children were present, and
Mrs. Liczbinski was afraid. Id. at 40. Mr. Liczbinski was also afraid of the Defendant because he
2
knew the Defendant had guns which he had seen the Defendant carry, and had been threatened
with. Id. at 133. He was afraid he would return home one day, and the Defendant would shoot
him. Id. Mrs. Liczbinski did not return home that night, and went to stay with her sister. Id. at 42.
Officer Ottenbreit corroborated that Mrs. Liczbinski advised police that the Defendant said
"we're going to kill that motherfucker tonight." Id. at 103. The Liczbinskis then moved because
Mrs. Liczbinski did not feel safe at the house due to the Defendant. Id. at 43. When police went
to arrest the Defendant, because he was known to have weapons, the police staged a fake hit and
run to get the Defendant out of his house. Id. at 101. When the police said his car had been hit,
the Defendant blamed Mr. Liczbinski for the fictitious accident. Id.
Officer Howley responded to the Liczbinskis on January 8, 2013, for a report of a man
with a rifle. Id. at 72. According to Mr. Liczbinski, the Defendant was standing in his doorway
with a long gun over his shoulder pointing to the ground with his finger on the trigger and he
yelled that Mr. Liczbinski's "time is coming" and that "he'll get his." Id. at p. 74. Mr. Liczbinski
testified that the Defendant said he would shoot Mr. Liczbinski and that he would "find out like
my father found out." Id. at 117. Mr. Liczbinski's father was shot and killed in the line of duty as
a Philadelphia Police Sergeant. Id. The Defendant denied the incident, and said he was upstairs
and he was carrying a handgun on his hip. Id. at p. 75.
The Defendant's wife testified for the Defense, and testified that the relationship with the
Liczbinskis went bad, and that the kids would come onto their part of the driveway and ''they
would be doing things like playing." Id. at 167. Mrs. Gravatt testified that the Liczbinskis came
out of their house on the October 2015 incident, and Mr. Liczbinski started pointing at the
Defendant while they were still in the car. Id. at 170. She claimed that Mr. Liczbinski came
running out of the house saying "hit me" with no provocation. Id. Mrs. Gravatt claimed that Mr.
3
Liczbinski had damaged their property, including a basketball court, and that there was video of
him doing it, but they couldn't find that video. Id. at 175-76.
The Defendant presented two character witnesses who testified that the Defendant is
peaceful and law-abiding. NT Trial Day 2 p. 4; 15. Mr. Canada then testified for the Defense.
He claimed that on the October 16, 2015 incident, the Defendant and Mr. Canada were in the
driveway, and while Mrs. Liczbinski was getting into her car the Defendant told Mr. Canada that
Mrs. Liczbinski's husband had assaulted him, and was harassing him because he was disabled.
Id. at 6-7. He claimed that no threats were made that day. Id.
The Defendant also testified. Unsurprisingly, the Defendant presented himself as
congenial and friendly to the Liczbinski's. Id. at 18-26. The Defendant also claimed to have
severe injuries as the result of the punch. Id. at 36. However, despite these claims, the Defendant
testified that he didn't fall to the ground after the punch, corroborating Mr. Liczbinski's story of
what occurred. Id at 55. The Defendant also testified that he carried his gun with him anytime he
went outside ''to deter further assault." Id at 36.
This Court found the Defendant guilty of all charges. On May 30, 2017, this Court
sentenced the Defendant to time served to 23 months for Terroristic Threats plus 3 years of
consecutive probation. The Defendant was also sentenced to one year of consecutive probation
for Harassment, and 3 years of probation for Stalking running concurrent with Terroristic
Threats. On July 10, 2017, the Defendant filed a timely Notice of Appeal.
ISSUES
Defendant's Concise Statement, received in chambers on August 29, 2017, raises the
following issues:
I. The trial court erroneously denied Appellant's motion to dismiss pursuant to Rule 600,
where the complaint was filed on 10/17/15 and trial did not commence until 2/14/17
4
2. The trial court erroneously allowed the Commonwealth to introduce a defense witness'
20 year old crimen falsi conviction.
3. The evidence was insufficient to make out the elements of each of the crimes in question.
a. The evidence was insufficient to establish that Appellant made a threat or that any
remarks he made were spoken with the specific intent required by 18 Pa.C.S.
§2706.
b. The evidence was insufficient to establish that Appellant engaged in any of the
behaviors proscribed by 18 Pa.C.S. §2709 or that he engaged in any conduct with
the intent to harass, annoy or alarm the complainant.
c. The evidence was insufficient to establish that Appellant engaged in any of the
behaviors proscribed by 18 Pa.C.S. § 2709.1 or that he engaged in any conduct
with the intent to place another person in reasonable fear of bodily injury or to
cause substantial emotional distress.
4. The verdict was against the weight of the evidence. All of the witnesses provided biased,
self-serving testimony. Each attempted to transfer theblame for their equally provocative
behavior to the opposing party. Where there was no unbiased testimony and where there
was no reason to believe one witness any more than another, the Commonwealth failed to
prove its case beyond a reasonable doubt.
5. The sentencing court abused its discretion because the case involved circumstances
where the application of consecutive guideline sentences for what was essentially the
same conduct was clearly unreasonable. The defendant was a 51 year old individual with
no prior criminal record and a bona fide past history of community service. Where
Appellant's equally provocative neighbor no longer resided in the house next door, there
was no reasonable justification for the imposition of a sentence of two years of parole and
four years of probation on an individual to whom the Commonwealth initially offered a
negotiated plea to one year of probation in exchange for a plea to M-3 harassment.
6. The sentencing court erred in imposing sentences for both stalking and harassment
because harassment is a lesser included offense of stalking and thus the sentences
merged.
ANALYSIS
I. The trial court erroneously denied Appellant's motion to dismiss pursuant to Rule 600,
where the complaint was filed on 10/17/15 and trial did not commence until 2/14/17
Defendant alleges a violation of Rule 600. Rule 600 violations are evaluated under an abuse
of discretion standard. The standard of review for a denial of a Rule 600 Motion is as follows.
Judicial discretion requires action in conformity with law, upon facts and circumstances
judicially before the court, after hearing and due consideration. An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the law is overridden or
misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.
5
The proper scope of review is limited to the evidence on the record of the Rule [600]
evidentiary hearing, and the findings of the [trial] court. An appellate court must view the
facts in the light most favorable to the prevailing party.
Additionally, when considering the trial court's ruling, this Court is not permitted to ignore
the dual purpose behind Rule [600]. Rule [600] serves two equally important functions: (1)
the protection of the accused's speedy trial rights, and (2) the protection of society. In
determining whether an accused's right to a speedy trial has been violated, consideration
must be given to society's right to effective prosecution of criminal cases, both to restrain
those guilty of crime and to deter those contemplating it. However, the administrative
mandate of Rule [600] was not designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the Commonwealth in an effort to
evade the fundamental speedy trial rights of an accused, Rule [600] must be construed in a
manner consistent with society's right to punish and deter crime. In considering [these]
matters ... courts must carefully factor into the ultimate equation not only the prerogatives of
the individual accused, but the collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Plowden, 2017 Pa. Super. 61, 157 A.3d 933, 936 (Pa. Super. Ct. 2017)
Under Rule 600, a "trial in a court case in which a written complaint is filed against the
defendant shall commence within 365 days from the date on which the complaint is filed."
Pa.R.Crim.P. 600. Further, "for purposes of paragraph (A), periods of delay at any stage of the
proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due
diligence shall be included in the computation of the time within which trial must commence.
Any other periods of delay shall be excluded from the computation." Pa.R.Crim.P. 600 (C) (1).
"The inquiry for a judge in determining whether there is a violation of the time periods in
paragraph (A) is whether the delay is caused solely by the Commonwealth when the
Commonwealth has failed to exercise due diligence. If the delay occurred as a result of
circumstances beyond the Commonwealth's control and despite its due diligence, the time is
excluded. In determining whether the Commonwealth has exercised due diligence, the courts
have explained that "[d]ue diligence is fact-specific, to be determined case-by-case; it does not
require perfect vigilance and punctilious care, but merely a showing the Commonwealth has put
forth a reasonable effort." Commonwealth v. Plowden, 2017 Pa. Super. 61, 157 A.3d 933, 937
6
(Pa. Super. Ct. 2017) (citing Pa.R.Crim.P. 600, Comment (citations omitted)). Any periods of
delay resulting from "(a) the unavailability of the defendant or the defendant's attorney; or (b)
any continuance granted at the request of the defendant or the defendant's attorney" are
excludable delay. See Pa.R.Crim.P. 600 (C) (3); See Generally Commonwealth v. Hunt, 2004 PA
Super 358, � 14, 858 A.2d 1234, 1240 (Pa. Super. Ct. 2004).
In this case, the Criminal Complaint was filed on October 15, 2015. Thus, the mechanical
run date would be October 15, 2016. Trial commenced on February 14, 2017, 123 days after the
mechanical run date. On February 25, 2016, the Defense requested a trial date, and trial was
scheduled for July 18-19, 2016. It then became apparent that this Court was already scheduled
for Pre-Trial Conferences on those dates. NT. Rule 600 Motion 2/10/17 p. 11. Emails discussing
the trial date were sent, and the Defense requested a date in September or later on a Thursday
and Friday. Id. at 12. Trial was scheduled for October 6, 2016, but the defense and this Court had
another matter that took priority. Id. at 12, 15. At this point, the defense attorney was unavailable
for trial, and the Defense requested that the trial be moved due to the other matters scheduled on
that same date. Id. at 18. The Defense again requested a Thursday/Friday time slot, so the case
was scheduled on February 9-10, 2017 in accordance with the Defense request and the Court's
calendar. Id. at 15. The Commonwealth requested the earliest possible date on the Court's
calendar. Id.
On February 9, 2017, the scheduled trial date, there was a snow day that closed the
courts, and February 10, 2017 did not have any jurors available for this case which was
scheduled as a jury trial. Id. at p. 28. The trial then began on February 14, 2017, in accordance
with the Court's calendar. In considering which time is excludable, the time from July 18, 2016
until October 6, 2016 would properly be excluded. When the July trial date was set, this Court
7
and counsel were unaware of when Pre-trial Conferences would be scheduled for the next
quarter. However, this period of time can be attributed to the Commonwealth, and the case
would still have begun within 365 days plus the excludable time. The Defense request for a trial
date in September or later and a Thursday/Friday date is time attributable to the Defense and/or
this Court's schedule. This is not delay caused «solely by the Commonwealth." In fact, this delay
is not attributable to the Commonwealth at all. That period of time between the July trial date
and the date requested by the Defense is 81 excludable days.
Then again, on October 6, 2016, this Court and the Defense attorney had another case
which took priority, and the Defense requested a continuance to a date with a Thursday/Friday
time slot. The next available date was February 9, 2017. There were 127 days between the
October 6 trial date and the February 9 trial date. That 127 day period of time was due to a
defense request, and is excludable. See Pa.RCrim.P. 600 (C) (3); See Generally Commonwealth
v. Hunt, 2004 Pa. Super. 358, � 14, 858 A.2d 1234, 1240 (Pa. Super. Ct. 2004). Additionally, the
snow day and following day where no jurors were available are excludable as Court delays that
were not attributable to the Commonwealth. Therefore, the Commonwealth had 210 days of
excludable time, trial commenced 123 days after the mechanical run date, and the Defendant was
brought to trial in accordance with Rule 600. The claim should be dismissed as meritless.
2. The trial court erroneously allowed the Commonwealth to introduce a defense witness'
20 year old crimen falsi conviction.
"When reviewing the denial of a motion in limine, this Court applies an evidentiary abuse
of discretion standard ofreview .... It is well-established that the admissibility of evidence is
within the discretion of the trial court, and such rulings will not form the basis for appellate relief
absent an abuse of discretion." Rivera, 983 A.2d at 1228 (citation and quotation marks omitted).
8
Thus, the Superior Court may reverse an evidentiary ruling only upon a showing that the trial
court abused that discretion. Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 636 (2010). A
determination that a trial court abused its discretion in making an evidentiary ruling "may not be
made 'merely because an appellate court might have reached a different conclusion, but requires
a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.' "Id (quoting Commonwealth v. Sherwood, 603 Pa. 92,
982 A.2d 483, 495 (2009)). Further, discretion is abused when the law is either overridden or
misapplied. Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (2005).
Commonwealth v. Hoover, 630 Pa. 599, 610, 107 A.3d 723, 729 (2014).
Under the Pennsylvania Rules of Evidence, evidence of a prior conviction may be used to
attack the credibility of any witness if it involved dishonesty or false statement. Pa.RE. 609 ( a).
Section (b) applies "if more than 10 years have passed since the witness's conviction or release
from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1)
its probative value substantially outweighs its prejudicial effect; and (2) the proponent gives an
adverse party reasonable written notice of the intent to use it so that the party has a fair
opportunity to contest its use." Pa.R.E. 609 (b). Robbery is considered crimenfalsi and
convictions for that offense are admissible for impeachment purposes. Commonwealth v.
Jackson, 526 Pa. 294, 585 A.2d 1001 (1991); Commonwealth v. Gordon, 355 Pa.Super. 25, 512
A.2d 1191 (1986); Commonwealth v. Harris, 2005 Pa. Super. 335, ,r 11, 884 A.2d 920, 925 (Pa.
Super. Ct. 2005).
Additionally, when the conviction is more than 10 years old, the trial court should
consider the following factors:
(1) the degree to which the commission of the prior offense reflects upon the veracity of
the defendant-witness; (2) the likelihood, in view of the nature and extent of the prior
record, that it would have a greater tendency to smear the character of the defendant and
suggest a propensity to commit the crime for which he stands charged, rather than
9
provide a legitimate reason for discrediting him as an untruthful person; 3) the age and
circumstances of the defendant; 4) the strength of the prosecution's case and the
prosecution's need to resort to this evidence as compared with the availability to the
defense of other witnesses through which its version of the events surrounding the
incident can be presented; and 5) the existence of alternative means of attacking the
defendant's credibility.
Commonwealth v. Randall, 515 Pa. 410, 413, 528 A.2d 1326, 1328 (1987).
The Defendant does not specifically allege why he believes this Court erred in admitting the
Crimen Falsi conviction of the Defense witness. However, the Commonwealth filed a written
motion advising the Defendant of their intent to use the Crimen Falsi conviction the morning
before trial, and emailed that Motion the day before. The Commonwealth gave the Defense an
opportunity to contest its use, and in fact a hearing was held before trial on that Motion. Mr.
Canada had a robbery conviction from 1996, and his was released from his last parole violation
for that case on May 24, 2004.1 NT. Rule 600 Motion 2110117 p. 20; 30. Therefore, the
conviction was almost 13 years old from the witness's release from confinement for the crime.
Thus, this conviction would only be admissible if its probative value substantially outweighs its
prejudicial value. See Pa.R.E. 609 (b ).
1
"However, the crucial date for impeachment purposes is not when a defendant was initially paroled for an offense
but when a defendant was last imprisoned for an offense. Appellant was recommitted as a parole violator in 1983.
"Recomrnitrnent is an administrative determination that the parolee should be reentered to serve all or part of the
unexpired term of his original sentence." Rivenbark v. Pennsylvania Board ofProbation and Parole, 509 Pa. 248,
253, 501 A.2d 1110, 1113 (1985) (footnote omitted).[ ... ]
We interpret Randall as providing a bright-line rule that a defendant may be impeached with a crime involving
dishonesty for which he has been imprisoned within ten years of trial regardless of whether his last period of
imprisonment for that crime was imposed at the original sentencing hearing or at a hearing on the revocation of
parole. In either case, the defendant's veracity may be called into question. The probative value of the conviction has
not been eroded simply because the defendant was paroled over a decade before trial. If a defendant is recommitted
as a parole violator, he has twice breached society's trust, once when he committed the original crime and again
when he violated the terms of parole. The parole violation tends to indicate that the defendant was never
successfully rehabilitated following his commission of the offense that cast doubt on his willingness to tell the truth.
Moreover, we see no reason why a parole violator should be shielded from cross-examination while a defendant
who has paid his debt to society by serving the full-length of his maximum sentence within ten years of trial should
be subject to impeachment." Commonwealth v. Jackson, 385 Pa.Super. 401, 409-10, 561 A.2d 335, 338-39 (1989),
afj'd, 526 Pa. 294, 585 A.2d 1001 (1991).
10
In making that determination, this Court considered the factors enumerated in
Commonwealth v. Randall, 515 Pa. 410, 413, 528 A.2d 1326, 1328 (1987). First, the witness's
conviction as a crime involving dishonesty does reflect upon the veracity of the witness. The
second factor weighs heavily in favor of admission as the conviction is of a witness as opposed
to the Defendant and does not smear the character of the Defendant or suggest he has a
propensity for committing the crime he is charged with. While the Court does consider the age of
the witness at the time of the crime, Mr. Canada was an adult when he committed the crime of
dishonesty, and then after being released from prison, violated his parole. Fourth, and most
importantly, the only third-party eyewitness in the case was Mr. Canada, the defense witness. As
the only witness not a party to the case, his testimony would carry great weight. NT. Rule 600
Motion 2/I 0/17 p. 22. Finally, the alternative means of attacking the witness's credibility were
limited, as Mr. Canada provided limited testimony regarding only one incident, and that
testimony was contrasted solely by the testimony of one of the victims, Mrs. Liczbinski.
Additionally, this Court sat as the finder of fact, and was able to consider the conviction solely
for credibility purposes. In reviewing the totality of the factors, in light of the fact that this was a
witness and not the Defendant, and the fact that this case rested on credibility, this Court found
that the probative value for impeachment substantially outweighed any prejudice to the
Defendant. This Court did not abuse its discretion in permitting the crimenfalsi conviction of a
Defense witness, and this claim must fail.
3. Toe evidence was insufficient to make out the elements of each of the crimes in question.
Whether sufficient evidence exists to support the verdict is a question of law; an appellate
Court's standard of review is de novo and their scope of review is plenary. Commonwealth v.
Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (citation omitted). When reviewing challenges to
11
the sufficiency of the evidence, appellate courts evaluate the record in the light most favorable to
the Commonwealth as verdict winner, giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d 226, 231
(Pa.Super.2007) (citation omitted). "Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged and the commission thereof by
the accused, beyond a reasonable doubt." Id. (quoting Commonwealth v. Brewer, 876 A.2d 1029,
1032 (Pa.Super.2005)).
However, the Commonwealth need not establish guilt to a mathematical certainty, and it may
sustain its burden by means of wholly circumstantial evidence. Id. In addition, the appellate court
may not substitute its judgment for that of the factfinder, and where the record contains support
for the convictions, they may not be disturbed. Id. Lastly, the finder of fact is free to believe
some, all, or none of the evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804
(Pa.Super.2006). Commonwealth v. Smith, 2016 Pa. Super. 187, 146 A.3d 257, 261-62 (Pa.
Super. a. 2016). Any doubts regarding a defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. Commonwealth v. Mucci, 2016 Pa. Super. 137, 143
A.3d 399, 409 (Pa Super. Ct. 2016), reargument denied (Aug. 31, 2016).
r
I
i
This Court found that this case was "based on the credibility pretty much alone." N.T. Trial
Daylp. 94.
a. The evidence was insufficient to establish that Appellant made a threat or that any
remarks he made were spoken with the specific intent required by 18 Pa.C.S.
§2706.
In order to prove the Defendant guilty of Terroristic Threats, the Commonwealth must
prove that the Defendant "communicated, either directly or indirectly, a threat to commit any
crime of violence with intent to terrorize another." 18 Pa.C.S.A. § 2706 (a) (1). In this case, the
12
Commonwealth has met their burden. While this Court felt that both sides had embellished their
stories, this Court ultimately concluded that Mr. and Mrs. Liczbinski testified credibly, and had
no reason to make up these threats. Conversely, this Court found the Defendant to be incredible,
and found that the sole third-party eye witness, Mr. Canada, was not being truthful with this
Court. Mrs. Liczbinski testified that the Defendant said "he's lucky he's at work now, you know,
now that I'm here with my boy[ ... ] we'll wait for him[ ... ] that motherfucker is going to find
out tonight when he gets home. We'll be waiting for him. We're going to kill that motherfucker
tonight." Id at p. 39-40. The Defendant clearly communicated a threat to commit a crime of
violence. Mrs. Liczbinski also noted that the Defendant commonly carried a gun, and that she
knew him to be in possession of weapons. The Defendant had also previously made threats that
Mr. Liczbinski would have the same fate as his father, who was shot to death. There was no
reason to make a specific threat, and claim that he had "boys" who would come with him to "kill
that motherfucker" unless the Defendant intended to terrorize Mr. and Mrs. Liczbinski.
In Commonwealth v. Kelly, the defendant told the victim's secretary that he was going to
kill her boss and a judge. 444 Pa.Super. 377, 386-87, 664 A.2d 123, 127-28 (1995). Like in this
case, the Defendant in Kelly claimed that the evidence was insufficient to support that he had the
intent to terrorize. The Superior Court found that the defendant's actions were "deliberate and
premeditated" and that ''the fact that Appellant threatened to kill both Mr. Eastburn and Judge
Kane established that he did indeed manifest the intent to terrorize them. See, Commonwealth v.
Green, 287 Pa.Super. 220, 429 A.2d 1180 {1981) (defendant's threats to "kill" the victim
established defendant's intent to terrorize the victim)." Id. The Court found that the intent to
terrorize "can be inferred from [the defendant's] actions and from the message he
communicated." Id Here, the Defendant made a clear specific threat to kill just like the
13
defendant in Kelly, and his actions were both deliberate and premediated based on the fact that
he made the statements where Mrs. Liczbinski could hear them when no incident immediately
preceded the threats. The Defendant's actions and message clearly communicate an intent to
terrorize.
b. The evidence was insufficient to establish that Appellant engaged in any of the
behaviors proscribed by 18 Pa.C.S. §2709 or that he engaged in any conduct with
the intent to harass, annoy or alarm the complainant.
To prove the crime of Harassment, the Commonwealth must prove beyond a reasonable
doubt that the Defendant intended to "harass, annoy or alarm another," and that "the person
communicates to or about such other person any lewd, lascivious, threatening or obscene words,
language, drawings or caricatures." 18 Pa.C.S.A. § 2709 (a) (4). Here, the Defendant clearly
intended to alarm Mr. and Mrs. Liczbinski. Making threats to kill someone's husband in front of
them is clearly intended to alarm the other individual. Additionally, the Defendant stated that he
and his boys were going to "kill that motherfucker." This is clearly threatening words and
language. Therefore, the Defendant engaged in prohibited conduct with the intent to alarm, and
the evidence was sufficient to support the conviction of Harassment.
c. The evidence was insufficient to establish that Appellant engaged in any of the
behaviors proscribed by 18 Pa.C.S. § 2709.1 or that he engaged in any conduct
with the intent to place another person in reasonable fear of bodily injury or to
cause substantial emotional distress.
In order to prove the Defendant guilty of Stalking beyond a reasonable doubt, the
Commonwealth must prove that the "engage[ d] in a course of conduct or repeatedly
communicates to another person" and that the communication was "under circumstances which
demonstrate or communicate either an intent to place such other person in reasonable fear of
bodily injury orto cause substantial emotional distress to such other person." 18 Pa.C.S.A. §
2709.1 (a) (2). A course of conduct is "a pattern of actions composed of more than one act over a
14
period of time, however short, evidencing a continuity of conduct. The term includes lewd,
lascivious, threatening or obscene words, language, drawings, caricatures or actions, either in
person or anonymously." 18 Pa.C.S.A. § 2709.1 (f).
In this case, the Defendant had a pattern of threats of violence. The threats in this case
began with the Defendant telling Mr. Liczbinski that he would end up just like his father, who
was shot to death. The threats culminated in the Defendant threatening to kill Mr. Liczbinski
within the hearing of Mrs. Liczbinski as she walked past him in their shared driveway.
Additionally, the Defendant carried a gun with him often when he went outside, and his repeated
threats to kill Mr. Liczbinski can only be intended to cause substantial emotional distress or
reasonable fear of bodily injury. In this case, the Defendant succeeded. Mrs. Liczbinski did not
go home after the last threat because she was afraid that the Defendant would follow through on
his threat and kill someone. The Defendant caused so much emotional distress that the
Liczbinski's had to move away to feel safe again. The Defendant's actions evince a clear intent
to place the Liczbinski's in fear of bodily injury or cause substantial emotional distress. The
Defendant also engaged in threatening communication repeatedly, over a long period of time.
The evidence was sufficient to support a Stalking conviction.
4. The verdict was against the weight of the evidence. All of the witnesses provided biased,
self-serving testimony. Each attempted to transfer the blame for their equally provocative
behavior to the opposing party. Where there was no unbiased testimony and where there
was no reason to believe one witness any more than another, the Commonwealth failed to
prove its case beyond a reasonable doubt.
Defendant next challenges the weight of the evidence. An appellate court's standard of
review when presented with a weight of the evidence claim is distinct from the standard of
review applied by the trial court. Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict is against the weight of the
15
evidence. Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054-55 (2013) (quotation marks,
quotations, and citations omitted). In order for an appellant to prevail on a challenge to the
weight of the evidence, ''the evidence must be so tenuous, vague and uncertain that the verdict
shocks the conscience of the court." Commonwealth v. Sullivan, 820 A.2d 795, 806 (2003)
( quotation marks and quotations omitted). Commonwealth v. Smith, 2016 Pa. Super. 187, 146
A.3d 257, 264-65 (Pa. Super. Ct. 2016). Commonwealth v. Devine, 2011 Pa. Super. 163, 26 A.3d
1139, 1146 (Pa. Super. Ct. 2011). A trial court's denial ofa motion for anew trial based on a
weight of the evidence claim is the least assailable of its rulings. Commonwealth v. Diggs, 949
A.2d 873, 879-80 (Pa. 2008).
Defendant claims that there was no reason to believe one witness more than another, so this
Court could not have concluded that the Commonwealth proved their case. Defendant's claim is
unsupported. While this Court believed that the Liczbinski' s may have exaggerated some of their
claims, their testimony was credible based on this Court's common sense and observation of
demeanor. Further, this Court found the testimony of the Defendant and Mr. Canada to be
dishonest and inconsistent at times. The behavior and demeanor of those witnesses while they
were testifying provided this Court ample reason to disbelieve their testimony. This case came
· down to credibility, and this Court was "free to believe some, all, or none of the evidence
presented." Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.Super.2006). Commonwealth v.
Smith, 2016 Pa. Super. 187, 146 A.3d 257, 261-62 (Pa. Super. Ct. 2016). This Court found the
Commonwealth witnesses to be credible, and their testimony established the elements of each
crime. The evidence is not so "tenuous, vague, or uncertain that the verdict shocks the
conscience of the court." The Defendant presenting dishonest witnesses does not render the
16
testimony of the Commonwealth unreliable where this Court is able to make a credibility
determination.
5. The sentencing court abused its discretion because the case involved circumstances
where the application of consecutive guideline sentences for what was essentially the
same conduct was clearly unreasonable. The defendant was a 51 year old individual with
no prior criminal record and a bona fide past history of community service. Where
Appellant's equally provocative neighbor no longer resided in the house next door, there
was no reasonable justification for the imposition of a sentence of two years of parole and
four years of probation on an individual to whom the Commonwealth initially offered a
negotiated plea to one year of probation in exchange for a plea to M-3 harassment.
Defendant challenges his consecutive sentences. "It is well settled that, with regard to the
discretionary aspects of sentencing, there is no automatic right to appeal." Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa.Super.2010) (citation omitted). Before [an appellate court
may] reach the merits of this [issue], [they] must engage in a four part analysis to determine: ( 1)
whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's
brief includes a concise statement of the reasons relied upon for allowance of appeal with respect
to the discretionary aspects of sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under the sentencing code. The third and
fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as
of right. Rather, he must petition [the appellate court], in his concise statement of reasons, to
grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the
appeal satisfies each of these four requirements, [the appellate court] will then proceed to decide
the substantive merits of the case. Commonwealth v. Malovich, 903 A.2d 1247, 1250
(Pa.Super.2006) (citations omitted).
The determination of what constitutes a substantial question must be evaluated on a case-by-
case basis. See Commonwealth v. Paul, 925 A.2d 825 (Pa.Super.2007). "A substantial question
exits only when the appellant advances a colorable argument that the sentencing judge's actions
17
were either: (I) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to
the fundamental norms which underlie the sentencing process." Commonwealth v. Griffin, 65
A.3d 932, 935 (Pa.Super.2013) (quotation and quotation marks omitted).
"Generally, Pennsylvania law affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a
substantial question." Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.2011). See
Commonwealth v. Hoag, 445 Pa.Super. 455, 665 A.2d 1212 (1995) (stating an appellant is not
entitled to a "volume discount" for his crimes by having all sentences run concurrently). In fact,
[the Superior] Court has recognized "the imposition of consecutive, rather than concurrent,
sentences may raise a substantial question in only the most extreme circumstances, such as
where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length
of imprisonment." Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super.2012) (en bane)
(citation omitted). However, the Superior Court has also held that "an excessive sentence
claim-in conjunction with an assertion that the court failed to consider mitigating factors-
raises a substantial question." Commonwealth v. Raven, 2014 Pa. Super. 168, 97 A.3d 1244, 1253
(Pa. Super. Ct. 2014) (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)). The
Defendant in this case challenges the imposition of consecutive probation sentences, claiming
this Court had no reason to impose consecutive probation where the Defendant was 51 years old
without a criminal record and a history of community service. The Defendant also argues that
this Court's imposition of consecutive probation is unreasonable because the Commonwealth
offered a negotiated plea for one year of probation for harassment. Defendant does not allege
that this Court didn't consider mitigating factors; he solely alleges that the imposition of a
18
consecutive sentence was unreasonable. Challenges to this discretion do not ordinarily raise a
substantial question. However, assuming arguendo that the Defendant has raised a substantial
question, this Court will address the merits of this claim.
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence
will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Fullin,
892 A.2d 843, 847 (Pa.Super.2006). In this context, an abuse of discretion is not shown merely
by an error in judgment. Rather, the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v.
Haynes, 2015 Pa. Super. 214, 125 A.3d 800, 808 (Pa. Super. Ct. 2015), appeal denied, 140 A.3d
12 (Pa 2016) (some internal cites omitted). When, as here, the trial court has the benefit of a pre-
sentence report, {the appellate courts] presume that the court was aware ofrelevant information
regarding the defendant's character and weighed those considerations along with any mitigating
factors. Commonwealth v. Seagraves, 2014 Pa. Super. 252, 103 A.3d 839, 842 (Pa. Super. Ct.
2014) (citing Commonwealth v. Griffin, 65 A.3d 932, 937 (PaSuper.2013).
A review of the "discretionary aspects of a sentence is confined by the statutory mandates of
42 Pa.C.S. §§ 978l(c) and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand the case to the sentencing court
with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied
the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves
circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is
unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing
court. 42 Pa.C.S. § 978l(c).
In reviewing the record, [the appellate court] consider[s]:
19
(1) The nature and circumstances of the offense and the history and characteristics of the
defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any
presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 978l(d) 42 PaC.S. § 978l(d). Commonwealth v. Raven, 2014 Pa. Super. 168, 97
A.3d 1244, 1254 (Pa Super. Ct. 2014).
Initially, this Court fails to see how the plea negotiations between the Commonwealth
and the Defendant are binding or impose a limitation on this Court's discretion or sentencing
guidelines. Additionally, a negotiated sentence from a plea agreement takes into account the
Defendant's acceptance ofresponsibility, something that is absent in this case. The Defendant
finally contends that he does not deserve consecutive probation because he has no criminal
record, is 51 years old, and has a history of community service. These factors were presented to
this Court, and weighed against all the other information before the Court The Defendant has
not alleged how this is a misapplication of the law or otherwise an abuse of discretion. In this
case, the Defendant is not entitled to a "volume discount" for his crimes. His lack of criminal
history is accounted for in the sentencing guidelines, and the Defendant received a guideline
range sentence. While the Defendant's community service is admirable, it is not enough to
overcome the Defendant's complete lack of remorse or acceptance of responsibility. N. T.
Sentencing 5/30/17 p. 8. Further, the Defendant was sentenced to time served to 23 months of
incarceration followed by 3 years of probation for Terroristic Threats. He was further sentenced
to one year consecutive probation for Harassment, and three years' probation for Stalking
concurrent to Terroristic Threats, Only one of his sentences was consecutive. This Court
considered the need to protect the community, and the Defendant's complete lack of remorse in
fashioning its sentence. The sentence is not so great as to be unreasonable, and is not an abuse of
discretion.
20
6. The sentencing court erred in imposing sentences for both stalking and harassment
because harassment is a lesser included offense of stalking and thus the sentences
merged.
Finally, Defendant challenges the imposition of separate sentences for stalking and
harassment. Defendant claims that the charges should merge for sentencing purposes. A claim
that crimes should have merged for sentencing purposes raises a challenge to the legality of the
sentence. Therefore, the standard of review is de novo and the scope of review is plenary.
Commonwealth v. Martinez, 2016 Pa. Super. 309, 153 A.3d 1025, 1029-30 (Pa. Super. Ct. 2016)
(citing Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.Super. 2012)). The test for merger is
determined by statute:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal
act and all of the statutory elements of one offense are included in the statutory elements of
the other offense. Where crimes merge for sentencing purposes, the court may sentence the
defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765.
"The statute's mandate is clear. It prohibits merger unless two distinct facts are present: 1)
the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other." Commonwealth v. Baldwin, 604 Pa.
34, 985 A.2d 830, 833 (2009). Accord Commonwealth v. Wade, 33 A.3d 108 (Pa.Super. 2011)
(holding Section 9765 prohibits merger of sentences unless strict two-part test met). "When
considering whether there is a single criminal act or multiple criminal acts, the question is not
'whether there was a "break in the chain" of criminal activity.' The issue is whether "the actor
commits multiple criminal acts beyond that which is necessary to establish the bare elements of
the additional crime, then the actor will be guilty of multiple crimes which do not merge for
sentencing purposes." Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa.Super. 2012). In
determining whether two or more convictions arose from a single criminal act for purposes of
21
sentencing, [the Court] must examine the charging documents filed by the Commonwealth.
Commonwealth v. Jenkins, 96 A.3d 1055, 1060 (Pa.Super. 2014) (holding, consistent with our
Supreme Court's jurisprudence, "We must determine whether [defendant's] actions ... constituted
a single criminal act, with reference to elements of the crime as charged by the
Commonwealth.") (internal quotation marks and citation omitted). Commonwealth v. Martinez,
2016 Pa. Super. 309, 153 A.3d 1025, 1030-31 (Pa. Super. Ct. 2016).
Here, the crimes charged all occurred on October 16, 2015 and comprise one criminal act.
Additionally, this Court agrees that Harassment is in fact a lesser included charge of Stalking.
Harassment requires the intent to harass, annoy, or alarm, and Stalking requires the intent to
cause substantial emotional distress or reasonable fear of bodily injury. While the intent required
is different, their distinction is in name only. It is impossible to intend to cause substantial
emotional distress or reasonable fear of bodily injury without also intending to harass or alarm.2
However, the sentence for Stalking can be vacated without upsetting the overall sentencing
structure.3 "The offense that is more broadly defined is conceptualized as the greater offense and
2
"Upon a simple reading of the statute we find harassment requires the prohibited conduct be done with the intent to
"harass, annoy, or alarm." On the other hand, stalking requires a more malevolent intent "to place [another] in
reasonable fear of bodily injury'' or "cause substantial emotional distress." The more malevolent intent necessarily
includes the lesser intent as one cannot intend to place someone in fear of bodily injury or cause emotional distress
without also intending to annoy or alarm that person. Stalking, as the greater offense, necessarily contains one or
more elements not contained in the lesser offense. The relevant inquiry is whether all of the elements of harassment
are contained in stalking. We therefore hold that all the factual predicates which support a finding of harassment
would equally serve as factual predicates for stalking if committed repeatedly under circumstances demonstrating
the requisite intent. For instance, a harassment charge under either§ 2709(a)(l) or (2) merely requires a single act of
physical contact or following in public with the intent to harass, annoy, or alarm. This same conduct if committed
repeatedly with the intent to place the victim in fear of bodily injury or cause the victim substantial emotional
distress would rise to the level of stalking. Moreover, but for the differing intent, the language used in § 2709(a) (3)
closely parallels the language found in the stalking subsection. Clearly, one can harass without stalking, but one
cannot stalk without also harassing. Stalking is simply a more serious form of harassment. Consequently, we find
that harassment is a constituent offense of stalking. Commonwealth v. Reese, 725 A.2d 190, 191-92 (Pa. Super. Ct.
1999)
3
An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it and may remand the
matter. 42 Pa.C.S.A. § 706. If our disposition upsets the overall sentencing scheme of the trial court, we must
remand so that the court can restructure its sentence plan. Commonwealth v. Williams, 871 A.2d 254, 266, 267
(Pa.Super.2005). By contrast, if our decision does not alter the overall scheme, there is no need for a remand.
22
a '
the offense whose elements are entirely subsumed is conceptualized as the lesser included
offense. Where such a relationship exists, the merger doctrine requires that only one sentence
may be imposed, but it has nothing to say about which sentence that should be." Commonwealth
v. Everett, 550 Pa. 312, 315-16, 705 A.2d 837, 839 (1998).4 Therefore, the Court may vacate
part of the sentence without upsetting the overall sentencing scheme as the Stalking sentence is
concurrent to the Terroristic Threats sentence.
CONCLUSION
For all of the aforementioned reasons, this Court's decision and order should be
AFFIRMED.
Copies oft���pinion
Mailed on
By Interoffice Mail to:
Robert Falin, Esq., ADA
Paul George, Esq., PD
Anne Schools - Court Administration
By First Class Mail to:
Donald Gravatt, Defe
Commonwealth v. Thur, 2006 Pa. Super. 208, ff 80-83, 906 A.2d 552, 569----70 (Pa Super. Ct. 2006) (quoting
Commonwealth v. Robinson, 817 A.2d 1153, 1163 n. 14 (PaSuper.2003) (emphasis in the original).
4
Superior Court has often stated that when crimes merge for sentencing purposes, the one for which a defendant
may be sentenced is the one to which the legislature has attached the greatest penalty. See Commonwealth v.
O'Brien, 356 Pa.Super. 294, 514 A.2d 618 (1986); Commonwealth v. Sayko, 333 Pa.Super, 265, 482 A.2d 559
(1984); Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). Although in most cases the "greater"
offense for merger analysis will also be the offense carrying the greater penalty, this is not universally true. In
Commonwealth v. Kozrad, 346 Pa.Super, 470, 499 A.2d I 096 (1985), the court applied this rule in affirming a
judgment of sentence for homicide by vehicle while driving under the influence, a third degree felony with a
mandatory minimum sentence of three years, while vacating the separate sentence imposed for the first degree
misdemeanor of involuntary manslaughter. Commonwealth v. Everett, 550 Pa. 312, 315-16, 705 A.2d 837, 839
(1998).
23