Com. v. Brinsky, D. ( 2016 )

J-S29020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL J. BRINSKY
Appellant No. 1211 WDA 2015
Appeal from the Judgment of Sentence July 8, 2015
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-SA-0000002-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MAY 19, 2016
Appellant, Daniel J. Brinsky, appeals from the judgment of sentence
entered July 8, 2015, in the Court of Common Pleas of McKean County,
following his conviction of the summary offense of harassment, 18 Pa.C.S.A.
§ 2709(a)(3). We affirm.
We take the facts of this case from the trial court’s opinion.
On the morning of October 28, 2014, Mr. Timothy Curry,
an oil and gas inspector for the Department of Environmental
Protection of PA, was traveling on Chapel Fork Road heading
towards Route 59 when he encountered [Appellant]. [Appellant]
was on a tractor in an adjacent field and yelled at Mr. Curry to
slow down. Mr. Curry continued on down Chapel Fork Road.
Then, [Appellant] proceeded to follow after Mr. Curry in his truck
with his headlights flashing. [Appellant] tried to get around Mr.
Curry and Mr. Curry let him pass. After Mr. Curry pulled over
onto the side of the road, [Appellant] put his truck [crosswise]
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S29020-16
on the road so that Mr. Curry could not leave. [Appellant] began
to question Mr. Curry about why he did not slow down and at
this point [Appellant] was visibly irate.[1] After some arguing,
another car came down the road and [Appellant] eventually let
that car pass down the road and did not let Mr. Curry go down
the road. Finally, Mr. Curry went into reverse and [Appellant]
held on to Mr. Curry’s back bumper saying[,] “Don’t run over my
feet!” Mr. Curry turned around on the road and went back
towards the entrance of Chapel Fork Road. The entire episode
lasted about fifteen to twenty minutes.
Trial Court Opinion, 9/25/15 at 1-2.
Because of the incident, Appellant was cited for the summary offense
of harassment. A magisterial district justice found Appellant guilty and the
trial court affirmed Appellant’s conviction on summary appeal. On July 8,
2015, the trial court sentenced Appellant to pay fines and costs associated
with the conviction proceedings. This timely appeal followed.
Appellant argues that the evidence was insufficient to support his
Harassment conviction. The following standard governs our review of a
challenge to the sufficiency of the evidence.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
____________________________________________
1
Appellant asserts in his brief that he was angry because children play near
the road and that he believed Mr. Curry was speeding. See Appellant’s Brief
at 3.
-2-
J-S29020-16
incompatible with the defendant's innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(citation omitted). The factfinder, 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. See Commonwealth v. Valentine, 101 A.3d
801, 805 (Pa. Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015).
Furthermore, the Commonwealth may sustain its burden by means of wholly
circumstantial evidence. See Commonwealth v. Diggs, 949 A.2d 873, 877
(Pa. 2008).
The offense of harassment is defined, in pertinent part, as when a
person “with intent to harass, annoy or alarm another … engages in a course
of conduct or repeatedly commits acts which serve no legitimate purpose.”
18 Pa.C.S.A. § 2709(a)(3).
Appellant argues that the trial court incorrectly determined that his
actions in yelling at Curry and preventing him from continuing down the road
constituted a course of conduct under section 2709(a)(3), rather than a
single act. We disagree.
The statute defines the term “course of conduct” as “[a] pattern of
actions composed of more than one act over a period of time, however
short, evidencing a continuity of conduct.” 18 Pa.C.S.A. § 2709(f) (emphasis
added). A single act will not constitute a course of conduct under the
-3-
J-S29020-16
definition of harassment. See Commonwealth v. Lutes, 793 A.2d 949, 961
(Pa. Super. 2002). This Court has “explained that course of conduct by its
very nature requires a showing of a repetitive pattern of behavior.”
Commonwealth v. Leach, 729 A.2d 608, 611 (Pa. Super. 1999) (citation
and quotation marks omitted).
Here, Appellant engaged in several acts over the course of fifteen to
twenty minutes. Appellant first yelled at Curry and then followed him down
the road in his truck with his headlights flashing. When Curry pulled over to
let Appellant pass, Appellant parked his truck across the road so that Curry
could not leave. While blocked on the roadway, Appellant continued to
berate Curry and refused to let him pass. This conduct only ceased when
Curry eventually reversed his vehicle and proceeded on the roadway in the
opposite direction. We conclude that the circumstances of this case establish
that Appellant engaged in a course of conduct in harassing Curry. See
Lutes, 793 A.2d at 961 (where the appellant and his co-defendant
confronted the victim outside of his workplace, blocked his path, and
repeatedly threatened to fight him, despite the victim's requests to be left
alone, holding that this constituted a “course of conduct” for the purpose of
the appellant's harassment conviction). Accordingly, Appellant’s claim lacks
merit.
Judgment of sentence affirmed.
-4-
J-S29020-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2016
-5-