Com. v. Holtzman, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BILL HOLTZMAN
Appellant No. 803 WDA 2014
Appeal from the Judgment of Sentence April 15, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001497-2013
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED June 1, 2015
Appellant, Bill Holtzman, appeals from the judgment of sentence
entered April 15, 2014, by the Honorable David R. Cashman, Court of
Common Pleas of Allegheny County. We affirm.
The trial court set forth the facts of this matter as follows.
The testimony at trial established that security officer
Melanie Phillips, … an employee of Magee Woman’s Hospital
UPMC, … along with Brian Zemenkowski, … a police officer for
Magee, were working at Magee on January 31, 2013. Both
Phillips and Zemenkowski responded to a call involving
Holtzman, who was [an elderly] patient in the hospital.
Holtzman was attempting to exit the hospital through an area
that lead into the labor and delivery area of the hospital.
Holtzman was obviously agitated. At one point he pointed a
lighter at Phillips and stated, “I never burned a bitch before, but
I have [] killed a few.” Phillips testified that Holtzman made
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*
Retired Senior Judge assigned to the Superior Court.
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pretty threatening comments to her and was pacing up and
down the hallway with a cane.
Phillips and Zemenkowski left the area at some point after
it appeared that Holtzman had been sufficiently calmed down.
Phillips testified that they returned on a second occasion, where
they observed Holtzman swinging the cane that he carried,
hitting medical equipment and swinging it at people that were
walking around. Zemenkowski grabbed the cane, prompting
Holtzman to spin around face-to-face with Phillips. Holtzman
lunged at Phillips in an apparent attempt to choke her, thereby
making contact with her left jaw and cheek area. Phillips
testified that she had red marks in that area. Zemenkowski
corroborated the existence of these marks and photographed
those marks.
Zemenkowski also testified at the trial that Holtzman was
wandering around in the hall, going in and out of other patient’s
rooms. He testified that Holtzman was: “Being a little disorderly,
not following the rules. The staff wanted him to go back to his
room.” Zemenkowski testified that he tried to talk Holtzman into
putting his cane down but that Holtzman continued to swing the
cane around. When Holtzman refused to put the cane down,
Zemenkowski testified that he grabbed the cane at the first
opportunity. He testified that this was the point when Holtzman
grabbed Phillips.
Trial Court Opinion, 12/9/14 at 1-3.
As a result of this incident, Holtzman was charged with two counts of
harassment1 and one count of disorderly conduct.2 Following a bench trial,
Holtzman was convicted of all charges and sentenced to time served. This
timely appeal followed.
On appeal, Holtzman raises the following issue for our review.
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1
18 Pa.C.S.A. § 2709(a)(1).
2
18 Pa.C.S.A. § 5503(a)(1).
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Was the evidence insufficient to support a conviction for
harassment or disorderly conduct when the appellant had no
intent to harass, annoy, or alarm anyone, but was merely trying
to leave the hospital?
Appellant’s Brief at 5.
The standard we apply when 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
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. Furthermore, when reviewing a sufficiency
claim, our Court is required to give the prosecution the benefit of
all reasonable inferences to be drawn from the evidence.
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such volume
and quality as to overcome the presumption of innocence and
satisfy the jury of an accused's guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail
even under the limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)
(citation omitted).
The crimes code defines the offense of harassment, as relevant to this
case, as follows.
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(a) Harassment—A person commits the crime of
harassment when, with intent to harass, annoy or alarm
another, the person:
(1) strikes, shoves, kicks, or otherwise subjects the
other person to physical contact, or attempts or
threatens to do the same.
18 Pa.C.S.A. § 2709 (a)(1). “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).
“A person is guilty of disorderly conduct if, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous
behavior….” 18 Pa.C.S.A. § 5503(a)(1).
The mens rea requirement of Section 5503 demands proof that
appellant by [his] actions intentionally or recklessly created a
risk of causing or caused a public inconvenience, annoyance or
alarm. The specific intent requirement of this statute may be
met by a showing of a reckless disregard of the risk of public
inconvenience, annoyance, or alarm, even if the appellant’s
intent was to send a message to a certain individual, rather than
to cause public inconvenience, annoyance, or alarm.
Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005)
(citations omitted).
Holtzman maintains that he was merely trying to leave the hospital,
and therefore had no intent to harass, annoy, or alarm anyone. He further
argues that hospital staff “over-reacted” and escalated the situation into a
physical incident. In support of his argument, Holtzman relies on, among
other things, this Court’s decision in Commonwealth v. Wheaton, 598
A.2d 1017, 1019-20 (Pa. Super. 1991), in which we held that defendant’s
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threats to sue water authority trustees were insufficient to establish intent
for a harassment conviction, where defendant was embroiled in a dispute
with the water authority and comments were made in effort to keep the
water authority from terminating water service. Holtzman argues by
analogy that although his actions may have caused annoyance to hospital
staff or other patients, his conduct merely reflected his attempt to leave the
hospital, rather than an intent to annoy or harass.
We are unpersuaded by Holtzman’s argument. While we are not at all
dismissive of Holtzman’s emotional state or physical and mental history, his
actions in verbally threatening and physically striking hospital staff, and in
swinging his cane about at other people and objects, clearly reflect his intent
to annoy and alarm others. Holtzman’s physical actions and verbal threats
certainly rise above mere complaints or requests to leave the hospital. We
further find no evidence to suggest that hospital staff “overreacted” or
otherwise unnecessarily escalated the situation. Although Holtzman’s
treating physician, Peter Tanzer, testified that he issued instructions to
hospital staff that Holtzman was not to be confronted and was allowed to
leave if he so desired, see N.T., Trial, 4/15/14 at 41, there is no evidence
that the security guards involved in this incident were alerted to these
instructions. Regardless, Dr. Tanzer’s instructions do not in any way
mitigate or otherwise negate Holtzman’s intent to annoy or alarm, as
reflected by the totality of the circumstances.
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As we find Holtzman’s aggressive physical conduct and verbal threats
clearly evinced an intent to annoy or alarm beyond the expression of mere
annoyance, we find no basis on which to disturb his conviction of
harassment and disorderly conduct.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2015
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3
As Holtzman argues only that the evidence was insufficient to support the
mens rea requirement of his convictions, we need not address the remaining
elements of the crimes further.
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