Com. v. Stix, J. ( 2016 )


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  • J-S60013-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JIM STIX,
    Appellant                No. 1617 EDA 2015
    Appeal from the Judgment of Sentence May 7, 2015
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0002364-2015
    BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
    MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 25, 2016
    Appellant, Jim Stix,1 appeals from the judgment of sentence entered
    on May 7, 2015, following his conviction of one count of harassment
    pursuant to 18 Pa.C.S. § 2709(a)(1). We affirm.
    We summarize the facts of the case as follows: Betty Gladney (“the
    Victim”) lives near Appellant on the 1500 Block of North 13 th Street in
    Philadelphia. N.T., 5/7/15, at 9. On October 14, 2014, the Victim observed
    the monitor of her surveillance system while she was eating dinner with her
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    The municipal court and the Commonwealth erroneously identified
    Appellant as Jim Stixs. Appellant’s Brief at 5. The common pleas court
    corrected the references, but the parties continue to use the incorrect name
    on appeal.     We have corrected the caption and refer to Appellant
    accordingly.
    J-S60013-16
    aunt and uncle in her home at approximately 4:00 p.m., when she noticed
    Appellant standing in front of her house. 
    Id. at 11–13.
    Appellant held an
    object resembling a golf club (“club”) with a “pointy end,” and he poked and
    kicked at the bricks on the Victim’s front walkway.      
    Id. at 13–15.
        The
    Victim went outside with her aunt and uncle to ask Appellant what he was
    doing, and Appellant responded by calling them “‘B’s and ‘MF’ers.”      
    Id. at 16.
    Appellant also shouted that “nobody is going to tell him where he can
    walk and what he can do.” 
    Id. The Victim
    subsequently called the police,
    who responded and directed Appellant to stay away from the Victim’s
    property, but they did not arrest Appellant. 
    Id. at 16–17.
    After the police left that evening, Appellant returned to the street
    swinging the club and shouting, “[A]nybody want to die tonight[?] You want
    to die tonight, Bitch[?] You want to die tonight[?]” N.T., 5/7/15, at 17. The
    Victim called the police, Appellant withdrew to his home, and although police
    responded, they did not arrest Appellant at that time. 
    Id. at 20.
    The Victim
    ultimately telephoned the police four times that day, and they responded
    four times. 
    Id. Police told
    the Victim they had “to catch [Appellant] over
    there for them to do something about it.” 
    Id. at 17,
    20. The Victim testified
    that prior to the incidents on October 14, 2014, Appellant would spit at her,
    swear at her, and photograph her at her home. 
    Id. at 17,
    22. Appellant
    admitted to writing and distributing letters to his neighbors that derogatorily
    referred to the Victim. He wrote in one letter, “[T]he lying bitch will pay.”
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    Id. at 67–68.
    He also admitted installing a video camera in order to record
    the Victim’s home. 
    Id. at 68–69.
    The Victim filed a private criminal complaint on October 15, 2014,
    charging Appellant with terroristic threats and harassment.       Complaint,
    10/15/14.    Appellant and the Victim attended compulsory mediation on
    multiple dates beginning November 18, 2014, to no avail. N.T., 5/7/15, at
    18.   Appellant was convicted at a bench trial in the Philadelphia Municipal
    Court on one count of terroristic threats, 18 Pa.C.S. § 2706(a)(1), and one
    count of harassment, 18 Pa.C.S. § 2709(a)(1), on February 2, 2015. 
    Id. at 87.
      On March 4, 2015, the Municipal Court sentenced Appellant to nine
    months of probation for the terroristic threats conviction; it imposed no
    further penalty for harassment.     Appellant appealed to the Philadelphia
    County Court of Common Pleas on March 9, 2015. When Appellant failed to
    appear at his trial on April 7, 2015, a bench warrant issued.      Appellant
    proceeded to trial, where the trial court convicted Appellant of one count of
    harassment pursuant to 18 Pa.C.S. § 2709(a)(1) and acquitted him of
    terroristic threats. On May 7, 2015, the trial court sentenced Appellant to
    ninety days of probation.   Appellant filed a timely notice of appeal to this
    Court on May 31, 2015. Both Appellant and the trial court have complied
    with Pa.R.A.P. 1925.
    Appellant presents the following issue for our review:
    Was the evidence at trial sufficient as a matter of law to
    support the conviction for harassment, 18 [Pa.C.S.] § 2709(a),
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    as set forth in the bills of information where the competent
    evidence of record did not establish beyond a reasonable doubt
    that [Appellant] communicated to or about a person any lewd,
    lascivious, threatening or obscene words, language, drawings or
    caricatures, on October 14, 2014, with the intent to harass,
    annoy or alarm that person, and where any words uttered by
    [Appellant] on that date either were not directed to the [Victim]
    at issue, did not constitute threatening words, or were not
    uttered with the requisite mens rea?
    Appellant’s Brief at 4.
    Our standard of review for a sufficiency-of-the-evidence claim is well
    settled:
    The standard we apply in reviewing the sufficiency of
    evidence is whether, viewing all the evidence admitted at trial in
    the light most favorable to the verdict-winner, there is sufficient
    evidence to enable the fact-finder to find every element of the
    crime beyond a reasonable doubt. In applying the above test, we
    may not weigh the evidence and substitute our own judgment
    for that of the fact-finder. In addition, we note that the facts and
    circumstances established by the Commonwealth need not
    preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of
    proving every element of the crime beyond a reasonable doubt
    by means of wholly circumstantial evidence. Moreover, in
    applying the above test, the entire record must be evaluated and
    all evidence actually received must be considered. Finally, the
    trier of fact while passing upon the credibility of witnesses and
    the weight of the evidence produced, is free to believe all, part
    or none of the evidence.
    Commonwealth v. Colon-Plaza, 
    136 A.3d 521
    , 525–526 (Pa. Super.
    2016) (quoting Commonwealth v. Robertson-Dewar, 
    829 A.2d 1207
    ,
    1211 (Pa. Super. 2003)).
    The crime of harassment is defined, in pertinent part, as follows:
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    (a) Offense defined.--A person commits the crime of
    harassment when, with intent to harass, annoy or alarm
    another, the person:
    (1) strikes, shoves, kicks, or otherwise subjects the
    other person to physical contact, or attempts or
    threatens to do the same;
    18 Pa.C.S. § 2709(a)(1).
    Appellant argues that the Commonwealth’s evidence is insufficient to
    establish every element of the crime of harassment beyond a reasonable
    doubt. As 
    noted supra
    , Appellant was convicted of harassment as set forth
    in 18 Pa.C.S. § 2709(a)(1). Confusingly, Appellant now contends that the
    communication of his conduct was not through the use of “lewd, lascivious,
    threatening, or obscene words,” referencing section 2709(a)(4).     Appellant
    also suggests that the Commonwealth did not meet its burden of proof in
    establishing that his actions on October 14, 2014, were threatening.
    Appellant’s Brief at 18.      Appellant asserts that although testimony
    established that he was standing on the street in front of the Victim’s home
    swinging a “thing that looks like a golf club” and shouting, “[A]nybody want
    to die tonight[?],” there was insufficient evidence to establish that he was
    threatening the Victim. 
    Id. at 19–20.
    He maintains there was evidence to
    prove that he was provoked. 
    Id. at 18–20.
    Finally, Appellant contends that
    even if his words were threatening, the Commonwealth did not establish that
    he exhibited the necessary mens rea because he did not address the Victim
    directly nor step onto her property. 
    Id. at 20.
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    The Commonwealth maintains that the evidence of record was
    sufficient. Commonwealth’s Brief at 6. The Commonwealth argues that the
    evidence established that Appellant threatened to harm the Victim when he
    “swung a club-like object around his body, came within mere feet of his 54-
    year-old neighbor, and pointedly asked her if she wanted to die that
    evening.” 
    Id. at 7.
    The Commonwealth also observes that the trial court
    found Appellant’s testimony incredible, and that credibility determinations
    are reserved solely for the fact-finder. 
    Id. at 8
    (citing Commonwealth v.
    Emler, 
    903 A.2d 1273
    , 1277 (Pa. Super. 2006); Commonwealth v.
    Sanchez, 
    848 A.2d 998
    , 1000 (Pa. Super. 2003)).            The Commonwealth
    notes that Appellant addressed the Victim directly from the front of her
    home steps, and called her a “bitch,” a name he often used to refer to her.
    
    Id. at 9.
    The Commonwealth contends that Appellant selectively interprets
    the evidence and thus, his claim must fail. 
    Id. at 9–10.
    First, any argument that the evidence was insufficient solely because
    Appellant did not “intend to invoke sexual desire,” Appellant’s Brief at 17–
    18, is inapposite.    Appellant was convicted of violating 18 Pa.C.S. §
    2709(a)(1), which lacks any reference to the sexual communication of
    section (a)(4). Thus, we examine solely the evidence relating to 18 Pa.C.S.
    § 2709(a)(1).
    The testimony established that Appellant used the “F word,” “MF’ers,”
    and referred to the Victim on many occasions as a “bitch.” N.T., 5/7/15, at
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    16.     Testimony also established that Appellant yelled, “[A]nybody want to
    die tonight[?]     You want to die tonight, bitch[?]         Anybody want to die
    tonight[?]” while swinging a club and looking in the direction of the Victim.
    
    Id. at 17.
          The prosecutor asked the Victim, “Where were you when
    [Appellant] said do you want to die tonight?” and the Victim responded, “I
    was standing at my front porch . . . .”         
    Id. at 18.
      When examining the
    totality of the circumstances, the fact-finder was able to conclude that
    Appellant’s    words   and   actions   toward    the   Victim   were   threatening.
    Commonwealth v. Hartzell, 
    988 A.2d 141
    , 144 (Pa. Super. 2009); see
    also Commonwealth v. Lutes, 
    793 A.2d 949
    , 961 (Pa. Super. 2002)
    (stating that an intent to harass may be inferred from the totality of the
    circumstances).
    Instantly, Appellant and the Victim had a turbulent history.       Prior to
    this incident, Appellant acknowledged distributing derogatory letters about
    the Victim to their neighbors and even stating in one, “[T]he lying bitch will
    pay.”     N.T., 5/7/15, at 67–68.       Given this tempestuous past, it was
    reasonable for the fact-finder to infer that Appellant intended to harass,
    annoy, or alarm the Victim. See 
    Hartzell, 988 A.2d at 144
    (stating that the
    totality of the circumstances permits the inference that the obscenities were
    shouted with the intent to harass, annoy, or alarm and this conclusion can
    be reached by considering the fact that the appellant acted this way
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    frequently).   We thus reject Appellant’s claim that his words were not
    threatening.
    We also reject Appellant’s claim that he did not possess the required
    mens rea necessary to uphold his conviction.            As noted above, it is
    reasonable to conclude that Appellant intended to harass or annoy the
    Victim.    We agree with the trial court that the conduct Appellant
    demonstrated was ongoing.           Trial Court Opinion, 12/2/15, at 4.         The
    evidence established that Appellant retreated to his home when the police
    arrived, distributed letters about the Victim to their neighbors, and video-
    recorded the Victim in her home. N.T., 5/7/15, at 67–69. As the trial court
    explained, Appellant’s retreat into his home each time the police arrived on
    the scene “demonstrated consciousness of guilt.”             Trial Court Opinion,
    12/2/15, at 4.   We have held that “[w]hen an individual knows or should
    know the consequences of his act, he is presumed to be aware of the nature
    of his act, and his decision to perform that act is a manifestation of his intent
    to [a]ffect the results of his act.” Commonwealth v. Hart, 
    559 A.2d 584
    ,
    587 (Pa. Super. 1989) (emphasis in original) (quoting Commonwealth v.
    Kozinn, 
    552 A.2d 1096
    , 1098 (Pa. Super. 1989)). We do not re-weigh the
    evidence   and   substitute   our    judgment   for   that   of   the   fact-finder.
    Commonwealth v. Mitchell, 
    135 A.3d 1097
    , 1101 (Pa. Super. 2016)
    (quoting Commonwealth v. Sanchez, 
    36 A.3d 24
    , 37 (Pa. 2011)). As a
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    result, we conclude that there was sufficient evidence presented to support
    Appellant’s conviction for harassment.
    Judgement of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/25/2016
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