Com. v. Leuschen, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOUGLAS BURTON LEUSCHEN :
:
Appellant : No. 804 WDA 2018
Appeal from the Judgment of Sentence March 20, 2018
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000314-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 15, 2019
Appellant, Douglas Burton Leuschen, challenges the judgment of
sentence entered in the Clarion County Court of Common Pleas, following his
convictions for terroristic threats, harassment, and defiant trespass. Appellant
contests the sufficiency of the evidence sustaining his convictions for
terroristic threats and defiant trespass, and the certification of the transcript.
After careful review, we affirm.
After a tree from his neighbor’s property allegedly fell and damaged his
shed in 2009, Appellant engaged in a protracted dispute with his neighbors,
the Terwilligers. In 2016, the Terwilligers began sales talks with Shawn
Smeltzer, who considered purchasing the property. While examining the
property on two separate occasions before the sale, Smeltzer had run-ins with
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 Retired Senior Judge assigned to the Superior Court.
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Appellant. Appellant told Smeltzer that the property was subject to a
$75,000,000.00 lien under maritime law. When he learned the Terwilligers
planned to sell their land, Appellant filed this lien in civil court, alleging the
damages stemmed from the harm to his shed and other property rights the
Terwilligers allegedly transgressed. The court removed that lien from the title,
and the Terwilligers sold the property to Smeltzer.
Smeltzer, in turn, sold the rights to cut timber on the property to a
lumber company. That lumber company sent Jeffrey Krach and other
employees to fell trees on Smeltzer’s land on March 27, 2017. As Krach cut
the first tree, he heard shouting and saw Appellant waving his arms. Krach
finished felling the tree, turned off his chainsaw, and removed his protective
earmuffs so he could hear Appellant. Appellant screamed that if Krach cut
down another tree, Appellant would kill him. As he shouted, Appellant was
red-faced, with veins bulging on his forehead. Krach attempted to defuse the
situation, to no avail. Appellant waved his finger at Krach, and continued to
berate him with obscenities and death threats. Finally, he told Krach he would
“blow [his] f-ing head off” if he cut another tree. N.T. Trial, 2/14/18, at 76.
Krach’s boss attempted to intervene and calm Appellant. Appellant “kept
going on about Freemasons and all kinds of other stuff,” including the alleged
lien he had on the property, which had been removed from the title several
months prior. Id., at 78, 118, 119. Krach and his boss talked with Appellant
for twenty minutes, and Appellant began speaking in a more reasonable tone.
However, when Krach’s boss asked Appellant if they could resume work,
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Appellant warned them not to touch any of the trees. Krach’s boss asked
Appellant what he would do if they went back to work. Appellant’s eyes
became glazed, his face reddened, and he told the men to “go ahead and
you’ll find out” before storming away. Id., at 79. Concerned for their safety,
Krach and his boss ceased work, and called Smeltzer.
Smeltzer arrived at the property and called the state police. As Smeltzer,
Krach, and Krach’s boss waited for the police to arrive, Appellant strode back
onto Smeltzer’s property and began yelling at the men. Appellant walked back
to his home shortly thereafter. He was approaching Smeltzer’s property for a
third time when he saw the police. Trooper Tate Allison ordered Appellant to
stop; Appellant disregarded the command, and began to flee. He was
apprehended and arrested.
Appellant declined the assistance of counsel. The court permitted
Appellant to proceed pro se, but appointed standby counsel for trial. At trial,
the jury convicted Appellant of terroristic threats, harassment, and defiant
trespass. The court sentenced Appellant to an aggregate 22-84 months’
incarceration.
Standby counsel entered his appearance after Appellant’s trial. He filed
a post-sentence motion on Appellant’s behalf, which was denied. Counsel then
filed a timely notice of appeal, and complied with the trial court’s order to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). In Appellant’s statement, he challenged the weight of the evidence
supporting his convictions, the sufficiency of the evidence sustaining his
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conviction for terroristic threats, and the certification of the transcript of his
trial. He later requested this Court remand the case for the filing of a
supplementary Rule 1925(b) statement. The Court permitted remand, and
Appellant’s supplementary statement challenged the sufficiency of the
evidence sustaining his conviction for defiant trespass. This case is now
properly before us.
Appellant first challenges the certification of the transcript in his case.
He maintains that the court reporter signed the transcript, but also used an
expired notary stamp to accompany her signature. Appellant contends that
the invalid notary stamp also voids the court reporter’s handwritten signature,
as the use of an expired stamp diminishes faith in the court system as a whole.
While Appellant concedes he has no objection to the content of the transcript,
he believes this Court cannot properly review this “tainted” document.
Appellant concludes his case should be remanded for a new trial. We flatly
disagree.
We note that “[o]bjections to the trial transcript are properly settled in
the [trial] court.” Commonwealth v. Szakal, 50 A.3d 210, 217 (Pa. Super.
2012) (citing Pa.R.A.P. 1922(a)).
The Pennsylvania Rules of Judicial Administration set forth the
requirements for the certification of a transcript:
Court reporting personnel who take the notes, record or transcribe
a proceeding shall certify that the transcript of proceedings is true
and correct and meets the format specifications established by the
Supreme Court of Pennsylvania in Rule 4010. When more than
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one person was engaged in the production of the transcript, each
shall certify as to his or her contribution.
Pa.R.J.A. 4013.
Here, the court reporter certified the transcript in accordance with Rule
4013 by affirming that she transcribed the document and its contents were
true and correct. She also affixed a notary stamp to the document, which the
parties agree was expired at the time it was used. Though using the stamp
was perhaps ill-considered, Pa.R.J.A. 4013 does not require that a transcript
be certified by a notary. Instead, the Rule merely requires that the court
reporter certify its contents. Because the court reporter was not required to
be a notary in order to satisfy certification requirements, her use of an expired
notary stamp is of no moment. The court reporter properly completed
certification when she signed the document. And as the trial court notes, and
Appellant concedes, he has lodged no objection against the content of the
transcript, merely its certification. See Pa.R.A.P. 1925(a) Opinion, filed
6/27/18, at 9; Appellant’s Brief, at 14. Therefore, we see no reason to
invalidate the transcript based on this meritless issue.1
In Appellant’s next issue, he challenges the sufficiency of the evidence
sustaining his conviction for terroristic threats. Appellant argues that he
threatened Krach “in the heat of the moment.” Appellant’s Brief, at 15.
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1 We also question Appellant’s suggestion that the court reporter acted
criminally by impersonating a notary public under 18 Pa.C.S.A. § 4913. We
remind Appellant that criminal charges are within the purview of the
prosecutorial arm of this Commonwealth. See In re Wilson, 879 A.2d 199,
205 (Pa. Super. 2005) (as “criminal prosecutions are sought to rectify injuries
to society, the only aggrieved party, if one exists, is the Commonwealth”).
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Appellant avers his intent was to protect his property interest, not to terrorize
Krach or anyone else.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that each element of the crimes charged
is established beyond a reasonable doubt. See Commonwealth v. Dale, 836
A.2d 150, 152 (Pa. Super. 2003).
“The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Commonwealth v. Bruce, 916
A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to
the accused’s guilt is to be resolved by the fact-finder. See Commonwealth
v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an appellate court, we
do not assess credibility nor do we assign weight to any of the testimony of
record.” Id. (citation omitted). Therefore, we will not disturb the verdict
“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.” Bruce,
916 A.2d at 661 (citation omitted). Evidence is weak and inconclusive “[w]hen
two equally reasonable and mutually inconsistent inferences can be drawn
from the same set of circumstances ….” Commonwealth v. Woong Knee
New, 47 A.2d 450, 468 (Pa. 1946). However, “[t]he Commonwealth may
sustain its burden of proving every element of the crime beyond a reasonable
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doubt by means of wholly circumstantial evidence.” Commonwealth v.
Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citations omitted).
“A person commits the crime of terroristic threats if the person
communicates, 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). To
sustain such a conviction, the Commonwealth must prove that the defendant
threatened to commit a crime of violence, and that the defendant
communicated the threat in order to terrorize another person or acted with
reckless disregard for the risk of causing terror. See Commonwealth v.
Beasley, 138 A.3d 39, 46 (Pa. Super. 2016). “Neither the ability to carry out
the threat, nor a belief by the person threatened that the threat will be carried
out, is an element of the offense.” Id. (citation omitted). And, “[b]eing angry
does not render a person incapable of forming the intent to terrorize.”
Commonwealth v. Walls, 144 A.3d 926, 936 (Pa. Super. 2016) (citation
omitted).
As support for his theory that he acted only out of transitory anger,
Appellant offers the case of Walls. In Walls, an assistant district attorney
was shopping in a mall when the appellant, who was also in the mall, noticed
her and began yelling that she had wrongfully prosecuted him. The appellant
shouted that the attorney had caused his grandmother’s death, and that she
should be next. The trial court convicted him of terroristic threats. On appeal,
this Court reversed the judgment of sentence, holding that “the chance nature
of the parties’ meeting and the spontaneous anger that the encounter instilled
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in the defendant” constituted insufficient evidence to support a terroristic
threats conviction. Id., at 937.
Here, Appellant mounted a years-long harassment campaign against the
Terwilligers, whom Appellant believed owed him money. See N.T. Trial,
2/14/18, at 116-119. When the Terwilligers prepared to sell their land to
Shawn Smeltzer, Appellant began badgering Smeltzer about the money
allegedly owed. See id., at 51-52. After buying the Terwilligers’ land, Smeltzer
arranged to have Jeffrey Krach and other crew members cut down trees on
the property. See id., at 50. Appellant, in full awareness that the land no
longer belonged to the Terwilligers, crossed the property boundary between
his estate and Smeltzer’s land. See id., at 72-74. Appellant then approached
Krach and threatened to “blow [his] f-ing head off” for cutting down the trees.
Id., at 76. When Krach and later Krach’s boss attempted to calm Appellant,
he briefly relented, only to redouble his threats later. See id., at 118-119.
Appellant told the men to “go ahead and find out” what he would do if they
cut down another tree, before furiously stalking away. Id., at 79.
Far from a bout of spontaneous anger brought on by a random
encounter, as in Walls, the interaction between Appellant and Krach took
place because Appellant intentionally crossed the property boundary.
Appellant did so in order to intimidate Krach into halting his work, by
communicating that he would kill Krach if he continued. Appellant’s contention
that this behavior was a “heat of the moment” reaction based on transitory
anger, and that he therefore lacked intent to terrorize Krach, ignores his
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pattern and practice of harassing any person associated with the Terwilliger
land. Appellant purposefully engineered the very situation that made him
angry. He cannot claim a lack of intent to terrorize based on that anger.
Therefore, we affirm Appellant’s conviction for terroristic threats.
In Appellant’s final issue, he challenges the sufficiency of the evidence
supporting his conviction for defiant trespass. Appellant claims he was never
instructed to stay off the property by the Terwilligers or Smeltzer. Appellant
argues that the subsection of the statute under which he was charged required
proof that Appellant received actual communication not to trespass. He
believes that here, where he alleges no such communication occurred, this
Court must vacate his conviction. We disagree.
Appellant was charged under 18 Pa.C.S.A. § 3503(b)(1)(i), which states
that a person commits the offense of defiant trespass if, “knowing that he is
not licensed or privileged to do so, he enters or remains in any place as to
which notice against trespass is given by … actual communication to the
actor[.]” 18 Pa.C.S.A. § 3503(b)(1)(i). Evidence that an appellant was
informed multiple times he was unwelcome on private property and thereafter
intruded on the property is sufficient to sustain a conviction for defiant
trespass. See Commonwealth v. Bennett, 124 A.3d 327, 331 (Pa. Super.
2015). Further, a person once welcome on private property may have that
access rescinded and become subject to a defiant trespass charge if he
continues to intrude. See Commonwealth v. Downing, 511 A.2d 792, 795
(Pa. 1986).
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By his own admission, Appellant exchanged heated words with Mr.
Terwilliger when Terwilliger came to put up no-trespassing signs on the
boundary between his property and Appellant’s land. N.T. Trial, 2/14/18, at
101. Appellant also testified about the ongoing disputes he had with Terwilliger
about trespassing. See id., at 102. And, Krach testified that no-trespassing
signs were “all the way around” the property, including along the side facing
Appellant’s land, at the time of the confrontation. Id., at 80. Finally, Trooper
Allison testified about his discussion with Appellant before his arrest. When
Trooper Allison asked Appellant if he would stop trespassing on the property,
Appellant replied that Allison “might as well kill [him].” Id., at 91.
Thus, Appellant had actual communication from Mr. Terwilliger that he
was unwelcome on the Terwilliger property. Terwilliger put up no-trespassing
signs all along the property, in the midst of a verbal confrontation with
Appellant. The signs were placed along the border of the Terwilliger property
facing Appellant’s land. The signs stayed up after Smeltzer purchased the
property, and were still hanging on the day that Appellant crossed over onto
the Terwilliger property. And though Appellant offered the thin defense that
he had been on the Terwilliger property years earlier, the jury clearly found
that defense unavailing. Based on the foregoing, we find the evidence
sufficient to sustain Appellant’s conviction for defiant trespass. As Appellant is
due no relief on any of his issues, we affirm his judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2019
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