Com. v. Weyandt, C. ( 2019 )

J-S83012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES A. WEYANDT :
:
Appellant : No. 452 WDA 2018
Appeal from the Judgment of Sentence February 27, 2018
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-SA-0000037-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES A. WEYANDT :
:
Appellant : No. 453 WDA 2018
Appeal from the Judgment of Sentence February 27, 2018
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-SA-0000038-2017
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JULY 03, 2019
In these consolidated cases, Charles A. Weyandt appeals from the
judgment of sentence imposed following his conviction after a bench trial of
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two counts of harassment, 18 Pa.C.S.A. § 2709(a)(3).1 Weyandt challenges
the sufficiency of the evidence. We affirm.
The facts of the case are not in substantial dispute. Weyandt’s
harassment convictions were based on evidence that on two occasions, one in
2016 and one in 2017, he painted the names of several of his neighbors on
the sides of his car. Next to the neighbors’ names, Weyandt painted the
word/acronym “AIDS.” See N.T. Trial, 2/27/18, at 8, 9, 10, 12-13, 50, 66,
70, and 102-03. At case 452 WDA 2018 (SA 37 of 20017), the court sentenced
him to a term of incarceration of thirty days followed by sixty days of
probation. At 453 WDA 2018 (SA 38-2017), the court sentenced Weyandt to
ninety days of probation to be served consecutive to the other sentence.2
Weyandt appealed. Both the trial court and Weyandt complied with
Pa.R.A.P. 1925. In lieu of a separate opinion, the trial court referred this Court
____________________________________________
1 In relevant part, the Crimes Code defines harassment as follows:
(a) Offense defined.−A person commits the crime of
harassment when, with intent to harass, annoy or alarm another,
the person:
* * *
(3) engages in a course of conduct or repeatedly commits
acts which serve no legitimate purpose[.]
18 Pa.C.S.A. § 2709(a)(3).
2The trial court also acquitted Weyandt of disorderly conduct. See N.T. Trial,
2/27/18, at 106.
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to the transcript of the bench trial for the reasoning in support of its decision.
See Order, dated 5/24/18, and filed on 5/30/18.
On appeal, Weyandt presents one question for our review:
1. Whether the trial court erred in determining that the evidence
was sufficient to find the defendant guilty of 18 Pa.C.S.A.
2709(a)(3), as the Commonwealth failed to present sufficient
evidence that the defendant engaged in a course of conduct as
the alleged actions were not a pattern of one or more acts that
temporally evidenced a continuity of conduct?
Appellant’s Brief, at 5.3
Our standard of review for a challenge to the sufficiency of the evidence
is well settled.
The standard we apply 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, we may not
weigh the evidence and substitute our judgment for 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 [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 The Commonwealth did not file a brief in this appeal.
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Commonwealth v. Best, 120 A.3d 329, 341 (Pa. Super. 2015) (citations
omitted; bracketed material in original). When “evaluating the sufficiency of
the evidence, we do not review a diminished record.” Commonwealth v.
Hilliard, 172 A.3d 5, 10 (Pa. Super. 2017) (citation omitted). “Rather, the
law [provides] that we are required to consider all evidence that was actually
received, without consideration as to the admissibility of that evidence or
whether the trial court’s evidentiary rulings are correct.” Id. (brackets in
original).
Section 2709 defines “course of conduct” as follows:
“Course of conduct.” 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. Acts indicating a course
of conduct which occur in more than one jurisdiction may be used
by any other jurisdiction in which an act occurred as evidence of
a continuing pattern of conduct or a course of conduct.
18 Pa.C.S.A. § 2709(f).
On appeal, Weyandt argues chiefly that because the two cited incidents
occurred approximately eight months apart they fail to show a “continuity of
conduct” or a pattern, and his convictions should be vacated. Appellant’s Brief,
at 12. We disagree.
Weyandt offers no controlling authority in support of this claim. Instead,
he cites the language of section 2709 referring to “more than one act” and
caselaw to the same effect. Appellant’s Brief, at 9. He cites Commonwealth
v. Leach, 729 A.2d 608 (Pa. Super. 1999) for the need to show a repetitive
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pattern of behavior. However, he disregards Leach’s explicit conclusion that
“[c]ourse of conduct is established by proof of two related but separate
events. For purposes of the stalking statute, course of conduct is a pattern of
actions composed of more than one act over a period of time, however short,
evidencing a continuity of conduct.” Leach, 729 A.2d at 611 (emphases
added, internal quotation marks omitted). Furthermore, each action, including
the first, is capable of sustaining a separate conviction for harassment. See
id. at 612.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, as we must under our standard of review, we have no
difficulty in concluding that the trial court properly determined that the two
incidents at issue constituted “[a] pattern of actions composed of more than
one act of over a period of time.” 18 Pa.C.S.A. § 2709(f). Weyandt’s
insufficiency argument fails.
Moreover, Weyandt’s exclusive emphasis on the two cited incidents
totally ignores the trial court’s conclusion, supported by an abundance of
record testimony, that he posted signs with similar pejorative claims, not only
on his own family property but also on public property in the area and even
utility poles. See N.T., Bench Trial, 2/27/18, at 118-26. The signs suggested,
among other things, that his various neighbors had sexually transmitted
diseases. The trial court found that this conduct “has gone on for a number
of years.” Id. at 125.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/2019
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