Com. v. Ferriera, P. ( 2014 )

J-A24039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PETER FERRIERA,
Appellant No. 139 EDA 2014
Appeal from the Judgment of Sentence December 13, 2013
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0002189-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 12, 2014
Appellant, Peter Ferriera,1 appeals from the judgment of sentence
imposed following his bench trial conviction of harassment and stalking. He
challenges the sufficiency of the evidence. We affirm.
Appellant’s conviction arose out of a course of conduct in which he
attempted to pursue a romantic relationship with Lisa Robertson, a television
host who presents products on the QVC shopping channel. This conduct
continued a prior course of several previous attempts at in-person
encounters when Ms. Robertson travelled for promotional appearances,
including at the home of her parents in Tennessee, and multiple visits to
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant’s surname is also variously spelled “Ferreira” in the record.
J-A24039-14
QVC headquarters in Chester County, Pennsylvania. Appellant is a native of
Connecticut.
QVC required its on-air personalities to maintain Facebook pages, as a
means of fostering audience identification with them, and extending the
opportunities for product promotion. (See N.T. Trial, 10/11/13, at 52).
These Facebook pages included references to personal activities such as
vacations, and daily activities like exercise routines and grocery shopping, as
well as product references and recommendations. Ms. Robertson testified
that she received performance reviews evaluating her rate of engagement
with Facebook followers and their “activity level.” (Id. at 54). The acts at
issue in this appeal involved comments posted by Appellant to the public
Facebook page of Ms. Robertson maintained by QVC.2 The Commonwealth
introduced twenty-two of Appellant’s postings into evidence. (See
Commonwealth Exhibits C-1 through C-22). 3
____________________________________________
2
Ms. Robertson testified that she did not have a personal Facebook page.
(See N.T. Trial, at 52).
3
For example, on April 14, 2012, Appellant posted the following:
LISA, I HAVE A VERY SERIOUS AND SENSITIVE QUESTION
TO ASK?? HAVE YOU EVER LOVED SOMEONE SOOOOOO MUCH
THAT YOU LIE IN BED THINKING OF “HIM,’ HOLDING HIM SO
CLOSE (actually it’s a pillow HE is holding instead) and YOU ARE
HAVING “FEMININE ISSUE,” PANTIES “SOAKING WET,
“PUPPIES” SUPER SENSATIVE, [sic] ++, YOUR ENTIRE BODY
FROM THE “TIP OF YOUR TOES TO THE ENDS OF YOUR HAIR”
ARE TINGLING. YOUR MIND IS “MUSH” AND YOUR HEART IS
BEATING SOOOOO VERY HARD YOU ARE “BLUSHING”
(Footnote Continued Next Page)
-2-
J-A24039-14
While Appellant’s messages are often rambling, and borderline
incoherent, there is no ground for dispute that in many of them he sought,
or imagined there already existed, a personal romantic relationship. On
April 9, 2012, he wrote, in pertinent part:
For all of you please understand this:
You do “not” know me!!!
* * *
You do not know what happened or when, where and why!
Lisa and “I” do!!! We “lived it!!” And yes it is and “always has
been “we”. Lisa & I her “pet”!!
(Commonwealth’s Exhibit C-7) (punctuation in original).
On April 11, 2012, he wrote, in part:
I love you Lisa Lannel and miss being near you soooo
much!! “But I will wait for when you are ready”! No running
around! Promise! I hope the 3rd partys [sic] understand what
we have is very special not dangerous!! So please let us be as
we should have been!!! ”Together”!! “Please”!!!!!!!!!!
(Commonwealth’s Exhibit C-10) (punctuation in original). On April 15, 2012,
Appellant referred to Ms. Robertson as “my very, very special friend and
torturer.” (See Commonwealth’s Exhibit C-21). Appellant often wrote
multiple times a day.
_______________________
(Footnote Continued)
UNCONTROLLABLY BECAUSE YOU LOVED “HIM” SOO SOOOO
MUCH YOU CAN NOT STOP SMILING AND CRYING???????
(Commonwealth’s Exhibit C-17; see also Trial Court Opinion, 1/27/14, at 2)
(punctuation and capitalization in original).
-3-
J-A24039-14
Appellant’s stalking of Ms. Robertson extends back to June of 2003.
(See Trial Ct. Op., at 1). On September 27, 2004, Appellant pleaded guilty
to stalking and was sentenced to time served and probation. The court
ordered him to have no contact with Ms. Robertson or QVC, and required
him to undergo a mental health evaluation.4 (See id.). On November 6,
2006, the trial court found him in violation of parole, but elected to take no
further action, except to reaffirm that Appellant was to have no contact with
Ms. Robertson or QVC. (See id.).
Appellant concedes that QVC obtained a civil injunction against him in
2004 to prevent him “from any kind of close contact with Lisa Robertson, to
cease any type of communication with her, basically stay away.”
(Appellant’s Brief, at 10 (record citation omitted); see Order Granting
Preliminary Injunctive Relief, 4/16/04, at 1-2; see also Order, 4/21/04
(extending preliminary injunction “until otherwise ordered by this [c]ourt.”)).
Appellant also concedes that this “injunction is still active.” (Appellant’s
Brief, at 10).
Nevertheless, Appellant continued to pursue Ms. Robertson. When
QVC personnel became aware, in April of 2012, that Appellant was posting
messages to Ms. Robertson’s QVC Facebook page, they stepped up their
monitoring and eventually contacted the police. Appellant was arrested on
____________________________________________
4
Appellant was diagnosed with delusional disorder. (See N.T. Hearing,
9/26/13, at 18).
-4-
J-A24039-14
May 22, 2012 and charged with stalking, 18 Pa.C.S.A. § 2709.1, and
harassment, 18 Pa.C.S.A. § 2709.
Prior to trial, the defense filed a motion in limine under Pennsylvania
Rule of Evidence 404(b) to preclude any mention by the Commonwealth to
the jury of Appellant’s prior conviction. After hearing argument, the trial
court ruled that the Commonwealth could refer to the civil injunction, but
not the conviction. (See N.T. Hearing, 9/26/13, at 12). Immediately
afterward, at the same hearing, Appellant requested a non-jury trial. The
trial court colloquied Appellant extensively; it then permitted him to waive a
trial by jury and proceed to a bench trial. (See id. at 27).
At trial, Ms. Robertson testified that Appellant’s postings alarmed and
scared her, particularly in consideration of his previous attempts to have
inappropriate contact with her, as well as his effort to contact her family.
(See N.T. Trial, 10/11/13, at 56-57). Ms. Robertson began receiving a daily
security escort to her car and taking other precautionary measures.
The court found Appellant guilty of stalking and harassment. (See id.
at 114). On December 13, 2013, the court sentenced Appellant to seven
years’ probation. This timely appeal followed. Appellant filed a statement of
errors on January 15, 2014. See Pa.R.A.P. 1925(b). The trial court filed its
opinion on January 27, 2014. See Pa.R.A.P. 1925(a).
Appellant presents one question, with two sub-questions, for our
review:
Whether the evidence adduced at trial was sufficient for a
conviction on the charge of stalking pursuant to 18 Pa.C.S.A.
-5-
J-A24039-14
§ 2709.1(a)(2), specifically whether the communications by
[Appellant] were “under circumstances which demonstrated or
communicated . . . an intent to . . . cause substantial emotional
distress to such other person”[?]
A. Are comments in the landscape of a virtual
community message board such as a public figure Facebook
page sufficient to show communications “under
circumstances which demonstrate or communicate an intent
to cause substantial emotional distress”?
B. Did the trial court, as trier of fact, improperly
consider prior criminal history not in admitted [sic] in
evidence in concluding that [Appellant] had the necessary
mens rea for stalking beyond a reasonable doubt?
(Appellant’s Brief, at 4).
Appellant challenges the sufficiency of the evidence for his conviction
of stalking.5 He argues chiefly that the Commonwealth failed to prove that
he had the intent to cause emotional distress. (See Appellant’s Brief, at 13-
14). We disagree.
Our standard of review for a challenge to the sufficiency of the
evidence is well-settled.
In reviewing the sufficiency of the evidence, we view all
the evidence admitted at trial in the light most favorable to the
Commonwealth, as verdict winner, to see whether there is
sufficient evidence to enable the jury to find every element of
the crime beyond a reasonable doubt. This standard is equally
applicable to cases where the evidence is circumstantial rather
than direct so long as the combination of the evidence links the
accused to the crime beyond a reasonable doubt. Although a
conviction must be based on more than mere suspicion or
____________________________________________
5
We note that Appellant raises no insufficiency claim on his conviction of
harassment.
-6-
J-A24039-14
conjecture, the Commonwealth need not establish guilt to a
mathematical certainty. 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. Gainer, 7 A.3d 291, 292 (Pa. Super. 2010), appeal
denied, 23 A.3d 1055 (Pa. 2011) (case citations and quotation marks
omitted).
The Crimes Code defines the offense of stalking as follows:
(a) Offense defined.─A person commits the crime of
stalking when the person either:
(1) engages in a course of conduct or repeatedly
commits acts toward another person, including following the
person without proper authority, under circumstances which
demonstrate either an intent to place such other person in
reasonable fear of bodily injury or to cause substantial
emotional distress to such other person; or
(2) engages in a course of conduct or repeatedly
communicates to another person under circumstances which
demonstrate or communicate either an intent to place such
other person in reasonable fear of bodily injury or to cause
substantial emotional distress to such other person.
18 Pa.C.S.A. § 2709.1.6
(1) A person acts intentionally with respect to a material
element of an offense when:
____________________________________________
6
Appellant correctly notes that prior to the entry into force of 18 Pa.C.S.A.
§ 2709.1 in 2003 one statute addressed both stalking and harassment.
(See Appellant’s Brief, at 14). Therefore, caselaw preceding the date of
enactment of the new statute often addresses both offenses without
mutually exclusive differentiation.
-7-
J-A24039-14
(i) if the element involves the nature of his conduct or
a result thereof, it is his conscious object to engage in
conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
18 Pa.C.S.A. § 302(b)(1).
Appellant’s first argument is that the evidence was insufficient because
he posted his messages to the public Facebook page maintained in the name
of Ms. Robertson by QVC. (See Appellant’s Brief, at 4, 12, 13-20).
Comparing his postings to a comment on a public message board, he asserts
that “a reasonable person would not believe his or her communications
would cause ‘substantial emotional distress.’” (Id. at 20). He posits that
this is so because by posting to Ms. Robertson’s public Facebook page, with
a fan base of 100,000 followers, there was no expectation that he would
receive a response. (See id. at 16). He also argues that there was
insufficient evidence of intent to cause emotional distress because his
“comments also allude to [Appellant] and Ms. Robertson having a
relationship with one another or possibly restarting a relationship.”7 (Id. at
16). We disagree.
____________________________________________
7
The allusion to restarting a relationship refers to Appellant’s testimony that
in 1982 he had a chance encounter at a party with the then-underage Ms.
Robertson, who comforted him after her older sister slipped him a “Mickey”
and he fell ill. (See N.T. Trial, 10/11/13, at 83-88). Ms. Robertson
(Footnote Continued Next Page)
-8-
J-A24039-14
Appellant’s argument fails first of all because how or where he sent
his messages has no factual bearing, and is legally irrelevant, to the
content of his communications. His argument also fails on the facts. The
trial court as fact-finder was entitled to accept the testimony of Ms.
Robertson that, even though she was assisted by a QVC social media
coordinator, she personally responded to as many comments as possible,
and did so because she was graded on her performance of this activity.
(See N.T. Trial, at 53-54).
This Court has previously decided under another statute, that repeated
email communications to another person under circumstances which
demonstrate or communicate either an intent to place such other person in
reasonable fear of bodily injury or to cause substantial emotional distress to
such other person are sufficient to prove stalking. See Commonwealth v.
D'Collanfield, 805 A.2d 1244, 1249 (Pa. Super. 2002). Analyzing the
former stalking provision, section 2709(b), for review of a sufficiency claim
under 18 Pa.C.S.A. § 5504(a.1) (harassment or stalking by communication),
since repealed, this Court affirmed the judgment of sentence and rejected a
pre-Grant 8ineffectiveness claim, as without arguable merit.
_______________________
(Footnote Continued)
categorically denied any contact with Appellant outside of court, or any past,
present or future relationship with him. (See id. at 59, 60).
8
See Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).
-9-
J-A24039-14
The D'Collanfield Court decided that there was a sufficient basis for
appellant’s guilty plea on evidence that he sent nine harassing and bizarre
emails to a psychologist, causing concern and alarm, after receiving an
unwelcome diagnosis, as a paranoid schizophrenic, on his court ordered
evaluation. (See id. at 1249). It further decided that intent could properly
be inferred from appellant’s words or actions in light of all the attendant
circumstances. (See id.). While the D'Collanfield Court addressed a
different, albeit virtually identical statute, since repealed, we discern no
reason why the legal principles it employed cannot be applied to the issue on
appeal here.
Similarly, this Court has determined, in construing a prior statute, that
unwanted “romantic” advances are sufficient to establish substantial
emotional distress. See Commonwealth v. Roefaro, 691 A.2d 472, 475
(Pa. Super. 1997) (affirming judgment of sentence of eighteen to thirty-six
months’ imprisonment, plus consecutive four-years’ probation, after
conviction for stalking on proof appellant persisted in pursuit of woman after
previous convictions; court properly admitted prior stalking convictions to
show course of conduct); see also Commonwealth v. Urrutia, 653 A.2d
706, 709 (Pa. Super. 1995), appeal denied, 661 A.2d 873 (Pa. 1995) (under
previous statute, prior bad acts properly admitted to establish appellant’s
intent to stalk victim; testimony permitted inference that appellant intended
to cause victim fear for her physical safety or intended to cause her
- 10 -
J-A24039-14
emotional distress; bad acts also admissible to show course of conduct);
Commonwealth v. Kozinn, 552 A.2d 1096, 1099 (Pa. Super. 1989)
(holding jury may infer intent to harass from attempt to engage in sexually
explicit communication with another individual, without prior express or
implicit consent of other individual). No changes to the statute have altered
the element at issue, or require a revision of the legal analysis this Court has
previously employed.
Appellant offers no authority to the contrary. Instead, he notes other
cases involving different forms of stalking and posits that because the facts
are not the same, the evidence here is insufficient. (See Appellant’s Brief,
at 16) (citing Commonwealth v. Leach, 729 A.2d 608 (Pa. Super. 1999)
(“calling”); and Commonwealth v. Hendrickson, 724 A.2d 315, 316-17
(Pa. 1999) (“fax”)). Appellant’s argument is unpersuasive.
Preliminarily, he mis-states the facts in Leach.9 He also
misapprehends the import of Hendrickson, which confirmed the
constitutionality of a different statute, harassment by communication or
address, 18 Pa.C.S. § 5504, since repealed,10 and is not at issue in this
appeal. See Hendrickson, supra at 316.
____________________________________________
9
Leach involved nine acts of vandalism to a vehicle, not “calling.”
(Appellant’s Brief, at 16); see also Leach, supra at 610.
10
18 Pa.C.S.A. § 5504 was repealed by 2002, Dec. 9, P.L. 1759, No. 218,
§ 4, effective 60 days after enactment.
- 11 -
J-A24039-14
Furthermore, Appellant’s factual premises are faulty, if not
disingenuous. First, although there was no dispute that Ms. Robertson had
about 100,000 Facebook followers (“[g]ive or take 10 or 20,000”), (N.T.
Trial, at 17), on any given day the traffic on her Facebook page was more
like “10 to hundreds of comments,” (see id.), making the prospect of a
response much more probable.
Secondly, and more importantly, as the messages quoted here
confirm, Appellant actively and unabashedly sought a response in his
messages. “A person acts intentionally with respect to a material element of
an offense when . . . it is his conscious object to engage in conduct of that
nature or to cause such a result[.]” 18 Pa.C.S.A. § 302(b)(1). Here,
Appellant intended the natural consequence of his actions, however
unrealistic or even delusional his romantic expectations were.
Viewing the evidence here in the light most favorable to the
Commonwealth as verdict winner, we have no difficulty in deciding that the
evidence was more than sufficient to convict Appellant of stalking.
Appellant’s issue does not merit relief.
Next, Appellant claims, in sub-question B, that the trial court
improperly considered his prior criminal history. (See Appellant’s Brief, at
4). Referring to the trial court’s partial grant of the motion in limine (when
the parties still contemplated a jury trial), and citing the trial court’s
statement in its Rule 1925(a) opinion, that Appellant “was not a neophyte in
- 12 -
J-A24039-14
this area of the law, a factor I took into account in deciding his intent,”
Appellant posits that the trial court improperly considered evidence of
criminal history not presented at trial. (See Appellant’s Brief, at 20-25; see
also Trial Ct. Op., at 4). We disagree.
First, Appellant did not raise this issue with the trial court. Accordingly
it is waived. “Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a).
Second, Appellant did not raise this issue in his statement of errors. It
is waived for that reason as well. “Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.” Pa.R.A.P. 1925(b)(4)(vii).
Third, “[i]t is presumed that a trial court, sitting as factfinder, can and
will disregard prejudicial evidence.” Commonwealth v. Miller, 987 A.2d
638, 670 (Pa. 2009) (citations omitted). Similarly, a trial court sitting as
fact-finder is traditionally “presumed to disregard inadmissible evidence and
consider only competent evidence.” Commonwealth v. Kearney, 92 A.3d
51, 61 (Pa. Super. 2014) (citation omitted). Further, a trial court’s mere
knowledge or familiarity with a defendant’s prior criminal history does not
undermine a subsequent conviction. See id. Therefore, even assuming,
contrary to fact, that the evidence at issue was inadmissible, under well-
settled law the trial court sitting as fact-finder would be presumed to
disregard it.
- 13 -
J-A24039-14
Fourth, Appellant waived a jury trial, fully aware, as was his counsel,
that the trial court, which had just ruled on his motion in limine, was
thoroughly acquainted with Appellant’s criminal history.
Fifth, the trial court did not say it considered prior convictions, only
that it considered that Appellant was “not a neophyte in this area of the
law,” a reference equally applicable to the still-outstanding civil injunction,
which, after all, the trial court had ruled admissible. (Trial Ct. Op., at 4).
Sixth, evidence of prior convictions is admissible to prove intent and
course of conduct in a prosecution for stalking. See Commonwealth v.
Roefaro, supra at 475; Urrutia, supra at 709.
Appellant’s second argument is waived and would not merit relief.
Our reasoning differs somewhat from that of the trial court. However,
an appellate court may affirm a valid judgment based on any reason
appearing in the record. See Commonwealth v. Elia, 83 A.3d 254, 264
(Pa. Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2014
- 14 -