Com. v. Leister, C. ( 2015 )

J-A26044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER L. LEISTER,
Appellant No. 113 MDA 2015
Appeal from the Judgment of Sentence December 11, 2014
in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-SA-0000082-2014
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 07, 2015
Appellant, Christopher L. Leister, appeals from the judgment of
sentence imposed pursuant to his summary bench conviction of harassment,
18 Pa.C.S.A. § 2709(a)(1). We affirm.
The background facts and procedural history of this matter are as
follows. On July 28, 2014, a citation was filed against Appellant for
harassment. On August 8, 2014, the magisterial district justice found
Appellant guilty. On September 5, 2014, Appellant filed an appeal of the
summary conviction to the trial court. The court held a de novo hearing on
December 11, 2014.
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*
Retired Senior Judge assigned to the Superior Court.
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At the hearing, Vincent Perry testified that he and his wife were driving
in their neighborhood on their way home when he noticed Appellant’s vehicle
in his “rear view mirror coming up on [them] pretty fast flashing [its] lights.”
(N.T. Hearing, 12/11/14, at 4-5). He stated that when he pulled into his
driveway, Appellant drove behind him, exited his vehicle, complained that he
had run a stop sign, threatened to beat up him and his wife approximately
three or four times, and said “he was going to kick [their] ass.” (Id. at 5).
After Appellant threatened them, he started walking toward Mr. Perry and
his wife, who told him to get off their property several times. (See id. at 7).
When Appellant finally got into his car and drove back onto the road, he
stated “I am not on your f’ing property now. Come on out here and I’ll
[kick] your ass.” (Id. at 8). Mr. Perry’s wife called the police, and Appellant
“peeled out and headed down the hill to his house.” (Id.).
Conversely, Appellant testified that he asked Mr. Perry to “please quit
running the stop sign,” to which Mr. Perry reacted by threatening to assault
him. (Id. at 10). The court did not find Appellant’s testimony to be
credible. (See Trial Court Opinion, 3/09/15, at 2-3).
At the conclusion of the hearing, the trial court convicted Appellant of
harassment and sentenced him to fines and costs totaling approximately
$450.00. On January 12, 2015, Appellant filed a timely notice of appeal.1
____________________________________________
1
Appellant filed a timely concise statement of errors complained of on
appeal on February 5, 2015 pursuant to the trial court’s order. See
(Footnote Continued Next Page)
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Appellant raises two questions for this Court’s review:
I. [Whether] the trial court committed an error of law and
abuse of discretion in finding [Appellant] guilty of 18 Pa.C.S.[A.]
§[]2709(a)(1), when evidence admitted at trial presented doubt
as to [Appellant’s] guilt[?]
II. [Whether] the trial court committed an error of law and
abuse of discretion in failing to recognize the de minimis nature
of [Appellant’s] conduct and dismissing the matter pursuant to
18 Pa.C.S.A. §[]312[?]
(Appellant’s Brief, at 2) (most capitalization omitted).
In his first issue, Appellant argues that “[t]he evidence at trial was
insufficient to find, beyond a reasonable doubt, that [Appellant] actually
threatened Mr. Perry.” (Id. at 4). This issue is waived and does not merit
relief.
It is well-settled that, “when challenging the sufficiency of the
evidence on appeal, [an] [a]ppellant’s 1925 statement must specify the
element or elements upon which the evidence was insufficient in order to
preserve the issue for appeal.” Commonwealth v. Gibbs, 981 A.2d 274,
281 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) (citation and
internal quotation marks omitted).
In the case before us, Appellant’s Rule 1925(b) statement does not
identify which element or elements of harassment the Commonwealth
_______________________
(Footnote Continued)
Pa.R.A.P. 1925(b). The trial court filed an opinion on March 9, 2015. See
Pa.R.A.P. 1925(a).
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allegedly failed to prove. (See Statement of Matters Complained of on
Appeal, 2/05/15, at 1 ¶ 1). Accordingly, Appellant’s challenge to the
sufficiency of the evidence is waived. See Gibbs, supra at 281. Moreover,
even if Appellant had not waived his sufficiency claim, it would not merit
relief.
Our standard of review of this matter 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.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation
omitted).
Section 2709 of the Crimes Code provides, in pertinent part that “[a]
person commits the crime of harassment when, with intent to harass, annoy
or alarm another, the person . . . strikes, shoves, kicks or otherwise subjects
the other person to physical contact, or attempts or threatens to do the
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same[.]” 18 Pa.C.S.A. § 2709(a)(1) (emphasis added). “An intent to harass
may be inferred from the totality of the circumstances.” Commonwealth v.
Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (citation omitted).
In the case sub judice, Mr. Perry testified that Appellant followed him
in his car, approaching quickly, and flashing his lights. (See N.T. Hearing, at
4-5). After following Mr. Perry and his wife to their property, Appellant
exited his vehicle, uttered profanities at them, and threatened to physically
attack them. (See id.). Although repeatedly asked to leave, Appellant
refused to do so until the police were contacted, and he then yelled
obscenities again before he “peeled out and headed down the hill to his
house.” (Id. at 8; see id. at 7). While Appellant gave a different version of
events, the trial court found that he was not credible, a finding that we will
not disturb. (See Trial Ct. Op., at 2-3); see also Harden, supra at 111.
Therefore, based on the totality of the circumstances and viewing the
evidence in the light most favorable to the Commonwealth as verdict winner,
we conclude that the trial court properly found that the evidence was
sufficient to support Appellant’s harassment conviction on the basis of his
threat to physically harm Mr. Perry and his wife. See Harden, supra at
111. Appellant’s first issue would not merit relief.
In his second claim, Appellant argues that, even if the evidence was
sufficient to support his conviction, the trial court erred when it did not
dismiss the harassment charge as de minimis because “[t]he harassment
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sought to be prevented with the enactment of 18 Pa.C.S.A. § 2709(a)(1)
was not one neighbor informing another neighbor about a genuine safety
concern.” (Appellant’s Brief, at 8-9). This issue does not merit relief.
“Our standard of review of [this issue] is to evaluate the trial court’s
ruling for an abuse of discretion.” Commonwealth v. Lutes, 793 A.2d 949,
963 (Pa. Super. 2002) (citation omitted). Section 312 of the Crimes Code,
de mimimis infractions, provides, in pertinent part:
(a) General rule.─The court shall dismiss a prosecution if,
having regard to the nature of the conduct charged to constitute
an offense and the nature of the attendant circumstances, it
finds that the conduct of the defendant:
* * *
(2) did not actually cause or threaten the harm or evil
sought to be prevented by the law defining the offense or did so
only to an extent too trivial to warrant the condemnation of
conviction[.]
18 Pa.C.S.A. § 312(a)(2). “An offense alleged to be de minimis in nature
should not be dismissed where either harm to the victim or society in fact
occurs.” Lutes, supra at 963 (citation omitted).
First, we agree with Appellant that the purpose of the harassment
statute is not to prevent “one neighbor [from] informing another neighbor
about a genuine safety concern.” (Appellant’s Brief, at 8-9). However, by
its clear terms, the statute does seek to prevent an individual from
threatening to cause physical harm to another. See 18 Pa.C.S.A. §
2709(a)(1).
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In this case, when declining to dismiss Appellant’s harassment charge
as de minimis, the trial court stated: “Appellant’s behavior caused Mr. Perry
and his wife annoyance and/or alarm by threatening to subject them to
physical contact. Further, Appellant’s behavior is not of the type customarily
tolerated by society.” (Trial Ct. Op., at 4).
We agree. Therefore, in reviewing the totality of the circumstances,
we conclude that the trial court did not abuse its discretion in declining to
dismiss Appellant’s harassment charge as de minimis. See Lutes, supra at
963. Appellant’s second issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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