Com. v. Chibber, P. ( 2018 )

J-S10014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PANNA CHIBBER :
:
Appellant : No. 2219 EDA 2017
Appeal from the Judgment of Sentence June 20, 2017
In the Court of Common Pleas of Lehigh County Criminal Division at No(s):
CP-39-CR-0003296-2016
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY BOWES, J.: FILED JULY 17, 2018
Panna Chibber appeals from the June 20, 2017 judgment of sentence
of $200 in fines, which was imposed after she was found guilty of the
summary offenses of harassment and disorderly conduct. We affirm.
The facts were summarized by the trial court as follows:
Tonya Hussett and her husband, along with their five
children, live at [99] Jackson Street, Whitehall, Lehigh County,
Pennsylvania. They have been residing in that home for the past
seven to eight years. The rear of Ms. Hussett’s property abuts
Woodside Alley. The Appellant’s driveway is located across the
alleyway and leads to the rear of her home, located [at] [88]
Harding Circle, Whitehall, Lehigh County, Pennsylvania. There is
a basketball hoop located in the rear of Ms. Hussett’s property,
facing Woodside Alley.
From the time that the Hussetts took residence of their
property in 2010, their adolescent and teenage boys have played
basketball in Woodside Alley. Though not every day, the boys
shoot hoops throughout the spring and summer time. Ms.
Hussett testified that on numerous occasions, the Appellant
would yell at the boys, at times addressing them with racial
J-S10014-18
slurs, such as “monkey” or “nigger.” Ms. Hussett advised her
children to be mindful of where the basketball landed as they
played and to keep it away from the Appellant’s rear property.
On February 10, 2012, Ms. Hussett observed that while her sons
were playing basketball in Woodside Alley, the Appellant had
exited her home and called the boys derogatory names, yelling
at them, [and] ultimately throwing a bottle at them.
Ms. Hussett addressed the Appellant, admonishing her for
her behavior and observing that throwing the bottle could have
resulted in one of the children being struck in the head. Ms.
Hussett determined that she could no longer handle the dispute
and called the Whitehall Police Department. When she informed
the Appellant that she was going to call the police, the Appellant
told her to go ahead and that the police would “lock her black
ass up.” Ms. Hussett ultimately did call the police and filed a
report.
On May 31, 2013, Ms. Hussett and her four[-]year[-]old
son were outside attempting to play basketball with a neighbor’s
child. The Appellant came out of her home and onto her second
story balcony to tell Ms. Hussett and the children to stop
bouncing the ball. The basketball, at certain times due to the
four[-]year[-]old’s lack of basketball skill, rolled onto the bottom
portion of the Appellant’s driveway. The Appellant began to take
pictures of Ms. Hussett and the children with a cellular
telephone. Ms. Hussett firmly directed her to stop taking
pictures of her son.
On May 17, 2014, the Whitehall Police were again
summoned to the area of Woodside Alley. Ms. Hussett called the
police when she noted a gold[-]colored car circling her street and
the alleyway. The car paused in front of Ms. Hussett’s home and
[the driver] pointed at it. Ms. Hussett believed that she saw the
Appellant driving the vehicle.
On April 25, 2015, Ms. Hussett hosted a 14th birthday
party for her son, Shavar. Shavar invited approximately five
other teens to their home and Ms. Hussett provided the boys
with pizza. After they ate, the boys asked if they could go
outside to play basketball. The weather was pleasant and Ms.
Hussett gave her permission. Ms. Hussett remained in her
kitchen but had a view of the basketball area through the
window. At some point, Ms. Hussett saw the Appellant come
-2-
J-S10014-18
outside of her home and heard her yell at the boys, calling them
“monkey,” “asshole,” and the “N word.” Notes of Testimony,
June 20, 2017, p. 55.
At approximately 8:30 p.m. that evening, Officer Quadir
Carter of the Whitehall Police Department was dispatched to the
area of 1699 Jackson Street, Whitehall, Lehigh County,
Pennsylvania for a report of disorderly people. Upon his arrival 7
to 8 minutes later, Officer Carter maneuvered his patrol vehicle
down Woodside Alley, which runs parallel to Jackson Street, and
is not heavily travelled. Officer Carter observed four or five
teenage boys, [whom] he approximated to be between 13 and
17 years old, playing basketball. Officer Carter, dressed in full
police uniform and driving a marked police vehicle, approached
the teenagers. Because he was unsure of the specific disorderly
behavior complained about, Officer Carter approached the boys
and asked them if they had seen any disorderly people in the
area. The boys suggested to Officer Carter that it was probably
their neighbor (later identified as the Appellant) complaining
about them playing basketball. The officer found the boys to be
very cooperative and told them that they could continue to play
basketball because the officer did not find such behavior to be
disorderly.
As Officer Carter attempted to leave the area, the
Appellant approached his vehicle and told the officer that the
boys playing basketball were being disorderly in that they were
bouncing the basketball and had been playing basketball
throughout the day. Selbourne Hussett, a family member of one
of the teenagers, also approached Officer Carter, and told him
that the boys were merely playing basketball in the alley and
were not doing anything else. Officer Carter left the area and
did not make any arrests that evening.
Ms. Hussett reported to the Whitehall Police Department
the following day to report the incident to the police.
At trial, Shavar Hussett testified that he and his friends
played basketball at the hoop positioned on Woodside Alley
approximately twice a month, sometimes until 10 p.m. He
stated that on almost every occasion, the Appellant would come
outside of her home and yell at him, calling him various
derogatory names. Mr. Hussett stated that he never answered
the Appellant back and did not curse at her, nor did he recall any
-3-
J-S10014-18
of his friends cursing at her.
The Appellant testified that on numerous occasions she
had spoken to Ms. Hussett regarding the children’s use of the
basketball hoop and the proximity to her driveway. She stated
that she was concerned about her liability should a child get hurt
on her property. She further stated that it was the Hussetts who
were constantly using racial slurs against her and her family.
She testified that on April 25, 2015, she had her windows open
and was able to hear the basketball bouncing. She stated that
she saw a child nearly get run over by a car passing through the
alley and called the police out of concern for the child’s safety.
She denied calling the teenagers any names on that evening.
On cross examination, the Appellant acknowledged that
upon moving into the neighborhood she was aware that the
houses were fairly close together and that there were many
children in the neighborhood. She further acknowledged that
the sound of a dribbling basketball annoys her and that she has
filed a civil lawsuit demanding $100,000 in damages because of
the noise from the basketball playing. The Appellant also
entered a video into evidence, which she recorded on her cellular
telephone of the April 25, 2015 incident.
From the video, the Court was able to hear the Appellant
telling the teens to play basketball at the playground and that
they are disturbing people at night. She never suggested to the
teens that she thought the behavior was unsafe or that she saw
one of them almost get hit by a passing vehicle.
Trial Court Opinion, 8/21/17, at 2-6.
On April 27, 2015, a criminal complaint charging harassment and
disorderly conduct was filed against Appellant.1 The preliminary hearing
originally scheduled for June 17, 2015, was continued due to Appellant’s
____________________________________________
1 Initially, Appellant was charged with harassment graded as a third-degree
misdemeanor and a summary disorderly conduct. The harassment charge
was later amended to reflect a summary grading of that offense.
-4-
J-S10014-18
unavailability, and rescheduled an additional five times to accommodate
both the Commonwealth and Appellant. The preliminary hearing was
conducted on July 26, 2016, and Appellant was formally arraigned on the
charges on September 12, 2016.
Multiple status conferences were held thereafter, at which Appellant
indicated a desire to put off trial so that she could obtain counsel. At the
March 30, 2017 status conference, trial was scheduled for June 20, 2017.
On the day of trial, Appellant sought a postponement to obtain counsel, but
her request was denied. The bench trial commenced and Appellant
proceeded pro se. The court found Appellant guilty of both summary
offenses, and sentenced her to pay a fine of $100 at each of the two counts.
Appellant timely appealed and complied with the trial court’s order
directing her to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The trial court issued its Rule 1925(a) opinion,
and the matter is ripe for review. Appellant raises four issues, which we
have reordered for ease of disposition.2
I. Whether the evidence in the record is insufficient to
support a conviction of harassment as enumerated under
18 Pa.C.S.A. § 2709(a)(3)?
II. Whether the evidence in the record is insufficient to
____________________________________________
2 We address Appellant’s sufficiency claims first, as a successful sufficiency
challenge results in discharge rather than a new trial. Commonwealth v.
Toritto, 67 A.3d 29, 33 (Pa.Super. 2013) (en banc); Commonwealth v.
Breighner, 684 A.2d 143 (Pa.Super. 1996) (en banc).
-5-
J-S10014-18
support a conviction of disorderly conduct as enumerated
under 18 Pa.C.S.A. § 5503(a)(3)?
III. Whether it is an abuse of discretion to deny a continuance
request for time to employ counsel after the right to
counsel is eliminated by oral motion before [sic]
immediately before trial?
IV. Whether the evidence in the record is sufficient to support a
speedy trials violation as enumerated under Pa.R.Crim.P.
600?
Appellant’s brief at 2-3.3
Appellant’s first and second issues challenge the sufficiency of the
evidence underlying her convictions. In evaluating a challenge to the
sufficiency of the evidence, our standard of review is as follows:
A claim impugning the sufficiency of the evidence presents
an appellate court with a question of law. The standard an
appellate court applies in reviewing the sufficiency of the
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,
an appellate court may not weigh the evidence and substitute its
judgment for the fact-finder. In addition the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence . . .[T]he finder 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.
____________________________________________
3 Appellant argues in her brief that there were discovery violations that
hampered her ability to prepare her defense and that the police lacked
probable cause to arrest her. Since these issues are not “subsidiary
question[s] fairly comprised” within the statement of questions, or “fairly
suggested thereby[,]” as required by Pa.R.A.P. 2116(a), we do not consider
them.
-6-
J-S10014-18
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)
(citations omitted).
Absent an abuse of discretion, a reviewing court will not reverse a trial
court’s determination of credibility. Commonwealth v. Hughes, 908 A.2d
924, 928 (Pa.Super. 2006) (citing Commonwealth v. Zingarelli, 839 A.2d
1064, 1069 (Pa.Super. 2003)). Appellate courts will find that a trial court
has abused its discretion if, “in reaching a conclusion, it overrides or
misapplies the law, or the record shows that the trial court’s judgment was
either manifestly unreasonable or the product of partiality, prejudice, bias or
ill will.” In re K.D., 144 A.3d 145, 151 (Pa.Super. 2016).
Appellant contends that the evidence was insufficient to prove
harassment. A person commits the summary 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. § 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. The term includes lewd,
lascivious, threatening or obscene words, language, drawings, caricatures or
actions, either in person or anonymously.” 18 Pa.C.S. § 2709(f). Also, “[a]
single act will not constitute a course of conduct under the definition of
harassment.” Commonwealth v. Lute, 793 A.2d 949, 961 (Pa.Super.
2002) (citing Commonwealth v. Battaglia, 725 A.2d 192 (Pa.Super.
-7-
J-S10014-18
1999)).
Appellant argues first that the Commonwealth failed to prove that she
had the intent to harass. She maintains that “imply[ing] intent to harass,
alarm, or annoy . . . based on words alone” was not enough to prove intent
to harass. Appellant’s brief at 16.
Appellant’s argument flies in the face of well-settled Pennsylvania case
law holding that “[a]n intent to harass may be inferred from the totality of
the circumstances.” Commonwealth v. Beck, 441 A.2d 395 (Pa.Super.
1982); see also Lute, supra (“A course of conduct intended to harass,
annoy or alarm a person can be based on words alone.”). Herein, the
totality of the circumstances supports the reasonable inference that
Appellant intended to harass.
Officer Quadir Carter testified that he received a call on April 25, 2015,
reporting a disorderly group of kids in an alley. When he arrived, the Officer
found cooperative, kind, teenagers playing basketball, who moved out of the
way when he drove by and caused no apparent risk by their actions. N.T.,
6/20/17, at 22-24.
Ms. Hussett testified to the following. Appellant routinely came outside
to yell at the boys as they played basketball. On one occasion, Appellant
threw water at the children; on another occasion, she threw a glass bottle at
them. Appellant told her the police would “lock her black A-S-S up first” if
Ms. Hussett called the police. Id. at 45. Appellant yelled at Ms. Hussett’s
-8-
J-S10014-18
four-year-old son to stop bouncing the basketball and took pictures of him.
She called Ms. Hussett’s fourteen-year-old son “the N word, monkey,
asshole.” Id. at 54-55. In addition, Appellant regularly drove by on the
main street and “honked her horn and . . . put her middle finger out, the FU
finger,” when Ms. Hussett played soccer in the yard with her four-year-old
son. Id. at 56. On another occasion, the Appellant circled the Hussetts’
home in a gold Honda and pointed it out to a passenger. Id. at 49-51.
Shavar Hussett, Ms. Hussett’s teenage son, testified that Appellant
came outside during his birthday party and called him “the N word,”
“monkey,” and similar racially-charged epithets. Id. 71-72. He added that
he plays basketball a couple times a month and, for as long as the hoop has
been there, Appellant has harassed him. Id. Shavar reported that he never
addresses Appellant and he has never cursed at her. Id. at 75.
At trial, Appellant challenged the testimony of all three Commonwealth
witnesses, maintaining that she was the true victim of harassment. Id. at
92-93. She conceded, however, that the kids never cursed or screamed at
her, or spoke back disrespectfully. Id. at 92-93. She played a video that
she recorded on her cellphone that depicted her yelling at the children to
stop playing basketball. Id.
The trial court, sitting as factfinder, used its “ordinary experiences of
life and common knowledge as to the natural tendencies of human nature,
as well as . . . observations of the demeanor and character of the
-9-
J-S10014-18
witness[es]” as they were on the stand, and credited the accounts of the
Commonwealth witnesses. Trial Court Opinion, 8/21/17, at 8. We may not
disturb the trial court’s credibility determinations where, as here, they are
supported by the record. This claim fails.
Appellant also challenges the trial court’s finding that her actions of
“repeatedly . . . screaming and yelling at the teenagers, calling them
derogatory and racial slurs, and even throwing a bottle at the[m]” were
committed solely to harass, annoy, or alarm the teenagers and/or the
Hussett family, and served no legitimate purpose. Trial Court Opinion,
8/21/17, at 11. She argues that the Commonwealth failed to prove that her
course of conduct served no legitimate purpose. Appellant’s brief at 16.
The record reveals that, at trial, Appellant argued extensively that she
feared for the children’s safety, as well as for her own liability. She
downplays that position on appeal, focusing instead on the other purposes
that her course of conduct purportedly served, including: “defending herself
against [Ms. Hussett] from malicious prosecution, false police reports,
terroristic threats, stalking, negligence, and nuisance.” Id. Appellant also
offers a lengthy description of the doctrine of attractive nuisance, and a
confusing argument that her “intended purpose was to stop [Ms. Hussett]
and her children from infringing upon her rights as a property owner . . .
[which] is legitimate because [of] the doctrine of attractive nuisance.” Id.
at 18.
- 10 -
J-S10014-18
We note that Appellant advanced all of the aforementioned arguments
during trial, and they were rejected by the factfinder. The trial court
expressly stated that it was unpersuaded that Appellant was motivated by a
fear that a child would get hurt on her property and she would be liable.
The court explained, “My ruling is based on the fact that I don’t believe that
you had a concern about anybody’s safety. All I heard in that video was
about the noise.” N.T. Trial, 6/20/17, at 103.
Again, Appellant takes issue with the facts as found, but it is not our
role to reconsider fact/credibility determinations made by the trial court.
See Antidormi, supra; Hughes, supra; Lute, supra. The trial court
determined that Appellant’s motivation was to prevent the noise caused by
the teenagers playing basketball. Even if we were to find, as Appellant
urges, that she had a legitimate purpose in reducing noise, her course of
conduct, i.e., screaming and yelling at the teenagers, calling them
derogatory and racial slurs, and throwing a bottle at them, cannot be said to
serve that legitimate purpose.
The facts of this case are analogous to those in Commonwealth v.
Duda, 831 A.2d 728 (Pa.Super. 2003). On appeal from his harassment
conviction for shouting obscenities and threats at his ex-wife over the
phone, Duda claimed that the phone calls served the legitimate purpose of
discussing visitation rights with his ex-wife. However, this Court held that
“[G]iven [Duda’s] use of obscenities and threats during the calls, one could
- 11 -
J-S10014-18
not conclude that he was serving a legitimate purpose by making the calls.”
Id. at 731. Similarly, Appellant’s conduct herein, namely the use of
profanity, racial epithets, and bottle throwing to deter the children from
playing basketball, did not serve a legitimate purpose. Appellant’s argument
fails.
Next, Appellant challenges the sufficiency of the evidence supporting
her disorderly conduct conviction. A person is guilty of disorderly conduct if,
“with intent to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he . . . uses obscene language, or makes an obscene
gesture.” 18 Pa.C.S. § 5503(a)(3). It is well-settled law that,
“notwithstanding the freedom of speech, certain speech is not protected and
can be the basis for a conviction of disorderly conduct.” Lute, supra at 962
(citing Commonwealth v. Mastrangelo, 414 A.2d 54, 58 (Pa. 1980)).
Appellant contends that, “because there is insufficient evidence of
obscene language or gestures, the conviction of disorderly conduct must be
set aside.” Appellant’s brief at 16. She argues that her actions were
“insufficient to establish that Appellant was intend[ing] to appeal to anyone’s
prurient interest or [to conduct] herself in a patently offensive way.” Id.
However, Ms. Hussett and Shavar Hussett testified that Appellant
made obscene gestures to them on numerous occasions. Shavar reported
that Appellant called him “the N word,” “monkey,” “asshole,” and other
racially-derogatory terms. N.T., 6/20/17, at 54-55, 71-72. Shavar further
- 12 -
J-S10014-18
testified that he understood Appellant’s racial epithets to be specifically
targeted toward him, because he was the only person of color within his
group of friends. Id. at 71. The trial court credited this testimony and
found that Appellant’s words and actions could not be seen as an exercise of
any constitutionally-protected right. The trial court also found that Appellant
used obscene language and gestures solely to harass, annoy, or alarm the
teenagers and the Hussett family, and since that finding is supported by the
record, we may not disturb it. No relief is due.
Next, Appellant alleges that it was an abuse of discretion for the trial
court to deny her request for another continuance “after eliminating the
Appellant’s right to counsel and then immediately proceeding on trying the
amended complaint.” Appellant’s brief at 9.
We find first that Appellant was not entitled to counsel. Pa.R.Crim.P.
122 provides that, “Counsel shall be appointed in all summary cases, for all
defendants who are without financial resources or who are otherwise unable
to employ counsel when there is a likelihood that imprisonment will be
imposed.” Pa.R.Crim.P. 122(1) (emphasis supplied). It is well settled in
this Commonwealth that, “[g]enerally, there is no requirement, either under
the United States Constitution or under the Pennsylvania Constitution, that
defendants in all summary cases be provided with counsel.”
Commonwealth v. Smith, 868 A.2d 1253, 1256 (Pa.Super. 2005) (quoting
Commonwealth v. Long, 688 A.2d 198, 201 (Pa.Super. 1996)). Further,
- 13 -
J-S10014-18
for a summary trial, a defendant is only entitled to be advised of a right to
counsel if there is a “reasonable likelihood of a sentence of imprisonment or
probation.” Pa.R.Crim.P. 454(A)(2). A reasonable likelihood of
imprisonment or probation requires more than the mere possibility under the
statute. See Commonwealth v. Blackham, 909 A.2d 315, 318 (Pa.Super.
2006) (citing Argersinger v. Hamlin, 407 U.S. 25 (1972)).
In the instant case, Appellant was not indigent. Furthermore, the
Commonwealth did not seek imprisonment or probation, and the trial court
“clearly had no interest in sentencing [Appellant] to a term of imprisonment
or probation.” Commonwealth’s brief at 12. Further, the two convictions
actually resulted in fines only, not imprisonment. Thus, Appellant was not
entitled to the appointment of counsel and her claim in this regard is without
merit.
Nor did the trial court abuse its discretion in denying Appellant’s
request for a continuance to obtain counsel as trial commenced in June
2017. At a status conference on February 16, 2017, the court noted that
the case was “really stale,” and that four trial dates had been postponed to
allow Appellant to secure counsel. N.T., 2/16/17, at 4. Nonetheless, the
court postponed trial yet again, with the admonition, “I can’t keep doing it.”
Id. On March 30, 2017, the court scheduled the trial for June 13, 2017, and
noted that this would give Appellant additional time to secure an attorney.
Trial actually commenced on June 20, 2017. That day, Appellant again
- 14 -
J-S10014-18
sought a postponement for purposes of obtaining counsel, but the court
said, “We’re now into this since April of 2015 . . . At this point in time, I
think that there’s been quite too much delay, and I am going to require you
to go forward.” N.T., 6/20/17, at 8-9.
The record establishes that the trial court accommodated Appellant’s
desire to have counsel by continuing the trial numerous times. We find no
abuse of discretion in the court’s denial of yet another continuance on the
date of trial.
The final issue raised by Appellant involves her right to a speedy trial.
Appellant claims that she is entitled to discharge under Pa.R.Crim.P. 600
because she was not brought to trial within 365 days of the filing of the
criminal complaint. Rule 600 provides that, when a defendant has not been
brought to trial within the time periods set forth in the rule, 365 days in the
instant case, “at any time before trial, the defendant’s attorney, or the
defendant if unrepresented, may file a written motion requesting that the
charges be dismissed with prejudice on the ground that this rule has been
violated.” Pa.R.Crim.P. 60(D)(1) (emphasis supplied). The Commonwealth
argues herein, and the trial court agreed, that Appellant waived her speedy
trial challenge because she failed to raise it before trial.
Appellant concedes that she “did not file a Rule 600 motion at any
time prior to her appeal[.]” Appellant’s brief at 10. Appellant seeks to
excuse her failure to do so by attacking the language of the rule. She
- 15 -
J-S10014-18
argues that Rule 600 would have included language explicitly providing “that
a motion under this rule must be made at the trial level or be waived” if that
was the intention behind the rule. Appellant’s brief at 10.
Appellant’s argument ignores well-established Pennsylvania law. A
motion to dismiss pursuant to Rule 600 must be made prior to trial, or such
claim is waived. See Commonwealth v. Baines, 389 A.2d 68 (Pa. 1978)
(speedy trial rule claim was waived where appellant moved for a discharge
after the beginning of jury selection); Commonwealth v. Frank, 398 A.2d
663 (Pa.Super. 1979) (failure to object prior to trial waives claim under
speedy trial rule). A litigant is presumed to know the law. See
Commonwealth v. Robertson, __ A.3d __, 2018 Pa. Super. 110 (Pa.Super.
2018). Moreover, since Appellant raised this issue for the first time on
appeal, it is also waived under Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/18
- 16 -
J-S10014-18
- 17 -