Com. v. Rzepski, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFF RZEPSKI :
:
Appellant : No. 240 EDA 2021
Appeal from the Judgment of Sentence Entered September 2, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004681-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFF RZEPSKI :
:
Appellant : No. 241 EDA 2021
Appeal from the Judgment of Sentence Entered September 2, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007063-2019
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 22, 2022
Jeff Rzepski (“Rzepski”) appeals from the judgment of sentence imposed
following his convictions for strangulation, simple assault, witness intimidation
(“intimidation”), and harassment.1 We affirm.
The trial court summarized the relevant factual history as follows:
____________________________________________
1 See 18 Pa.C.S.A. §§ 2718, 2701, 4952, 2709.
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[Susan] Wahl had been in a romantic relationship and
married to [Rzepski] for nearly twenty years. On June 10, 2019,
after a couple hours of sleep, [Rzepski] attempted to get Ms. Wahl
to drive him to work (nearly three hours away) and stay with him
at the job site for up to eight hours in 100[-]degree weather.
When [Ms. Wahl] refused to drive [Rzepski] to the job site,
[Rzepski] twisted her arm behind her back and grabbed her by
the throat and began to strangle her with one hand to the point
where she was barely able to breathe.
[Rzepski] released Ms. Wahl and she then grabbed her
phone and ran to the bathroom. [Rzepski] then hit Ms. Wahl with
a closed fist in her eye. Ms. Wahl testified that after leaving the
bathroom, she went to the bedroom to call 911. [Rzepski] then
grabbed his keys, including the key to their shared car, and walked
to his mother’s house. When the police arrived, [Ms. Wahl]
focused on her injuries in their conversation. Detectives took
some pictures of Ms. Wahl’s injuries at the station, and she took
some herself as well. From June 13 to June 16, 20[19], Ms. Wahl
testified that [Rzepski] was back living in the house that they
shared while she was waiting for the warrant to be executed.
[Rzepski] was arrested approximately a week after [the] June 10,
20[19] [incident]. A stay-away order was issued as a condition of
his bail.
[Rzepski] continually called [Ms. Wahl] on her cell phone
from prison, and she mostly did not answer his calls. When she
did answer, [Rzepski] continually told her to “[remember what
you did in Florida for me],” where she had not come forward
regarding [Rzepski’s] prior domestic abuse. Ms. Wahl took his
statements to [remember what she did in Florida for him] as
intimidating her to not testify. No other quid pro quo or financial
incentive was offered by [Rzepski] to [Ms. Wahl]. In a victim
impact statement, Ms. Wahl made it clear that over the course of
their relationship, [Rzepski] had a negative impact on the lives of
her and her son. [Rzepski] had previously pressured Ms. Wahl
not to come forward and press charges [for his prior domestic
abuse of Ms. Wahl in Florida], and had a witness tampering
conviction from Florida.
Trial Court Opinion, 10/8/21, at 2-4 (citations and unnecessary capitalization
omitted).
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Police charged Rzepski with strangulation and simple assault at docket
4681 of 2019, and with intimidation and harassment at docket 7063 of 2019.
The matter proceeded to a consolidated non-jury trial at the conclusion of
which the trial court found Rzepski guilty of strangulation, intimidation, simple
assault, and harassment. On September 2, 2020, the trial court sentenced
Rzepski to four to eight years in prison for strangulation, followed by five years
of probation for intimidation. The court imposed no further penalties for
simple assault and harassment. Rzepski timely filed a post-sentence motion
which was denied by operation of law. Rzepski then timely filed a notice of
appeal, and both he and the trial court complied with Pa.R.A.P. 1925.
Rzepski raises the following issues for our review:
1. Was not the evidence insufficient as a matter of law to establish
the elements of intimidation beyond a reasonable doubt, where
the words uttered, “think back on Florida” are so ambiguous
that they do not satisfy the requisite intent necessary to
constitute an act of intimidation under 18 Pa.C.S.[A.]
§ 4952(a)(1), and is any attempt to divine such meaning
improper conjecture and speculation?
2. Did not the trial court abuse its discretion in not granting
[Rzepski’s] post-sentence motion for a new trial, as the verdict
was so contrary to the weight of the evidence as to shock one’s
sense of justice, where the testimony was vague, inconsistent
and incredible?
Rzepski’s Brief at 4.
In his first issue, Rzepski challenges the sufficiency of the evidence
supporting his conviction for intimidation. In reviewing a sufficiency
challenge, the following standard and scope of review apply to our analysis:
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Because a determination of evidentiary sufficiency presents
a question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018).
The crime of intimidation is defined as follows:
A person commits an offense if, with the intent to or with
the knowledge that his conduct will obstruct, impede, impair,
prevent or interfere with the administration of criminal justice, he
intimidates or attempts to intimidate any witness or victim to:
(1) Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge concerning
any information, document or thing relating to the
commission of a crime.
18 Pa.C.S.A. § 4952(a)(1). In intimidation cases, “the facts of each case and
the history between the actor and the witness will determine whether such
communications, without more, qualify as ‘intimidation.’” Commonwealth
v. Lynch, 72 A.3d 706, 710 (Pa. Super. 2013). If the requisite mens rea is
present, intimidation can occur without bullying or fearsome words. See
Commonwealth v. Doughty, 126 A.3d 951, 957 (Pa. 2015) (holding that
“proof of manifest threats is not required” and that “a mere look or posture
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can bully, threaten, coerce, frighten, or intimidate beyond question”). A
history of threatening and invective behavior between two parties is relevant
to whether there is sufficient evidence of intimidation. See id. at 958.
Rzepski argues that his instruction to Ms. Wahl that she “think back on
Florida” is too ambiguous to satisfy the requisite intent needed for an
intimidation conviction. See Rzepksi’s Brief at 12. Rzepski asserts that he
“never asked [Ms. Wahl] not to come to court, or threatened her over the
phone, or offered any money or incentive.” Id. He contends that the
Commonwealth failed to provide any testimony, phone recordings, or other
extrinsic evidence indicative of prior criminal conduct or domestic violence.
Id. at 13. Rzepski also contends his instruction to Ms. Wahl was so ambiguous
that numerous “innocent interpretations” could be inferred from it, and
therefore, to derive a malicious intent from the phrase would be improper
speculation and conjecture. Id. Rzepski claims that his phone call to Wahl
did not reflect an abusive history, nor did he engage in invective behavior
during the call. Id. at 14. Rzepski argues that “[b]ecause of the ambiguity,
this Court cannot distinguish whether the statement is mere pleading and
begging, inducement or a call to do the right thing and not proceed with false
charges against him.” Id. at 15. Rzepski contends that Ms. Wahl’s fear cannot
serve as a substitute for proof of his intent to intimidate her. Id. at 16.
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The trial court considered Rzepski’s sufficiency challenge and
determined that the evidence was sufficient to support his intimidation
conviction. The court reasoned as follows:
Here, the prosecution submitted evidence of a witness
tampering conviction in Florida in order to demonstrate what [Ms.
Wahl] would have understood “[remember what you did in Florida
for me]” to mean. Yes, intent on the part of [Rzepski] rather than
just the intimidating effect on the victim is required for a witness
intimidation conviction. Conversely, an attempt to intimidate may
be unsuccessful due to unequal power dynamics, yet still be
sufficient for a conviction due to the requisite intent.
The “circumstances in their entirety” make clear that
[Rzepski] intended to intimidate [Ms. Wahl] into not testifying.
Setting aside any hidden meaning in “[remember what you did in
Florida for me],” [Rzepski] was continually calling [Ms. Wahl]
despite the stay-away order. Taking into account the witness
tampering conviction [Rzepski] received in Florida, the meaning
of “[remember what you did in Florida for me],” becomes much
clearer. Moreover, it becomes harder to dispute the intention on
[Rzepski’s] part. Under Doughty, “proof of manifest threats is
not required,” and intent to intimidate is to be inferred by the fact-
finder from the totality of the circumstances. In this case, it was
appropriate for the court to find [Rzepski] guilty of witness
intimidation and the charge should be sustained on appeal.
Trial Court Opinion, 10/8/21, at 5-6 (citations omitted).
Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, and granting every reasonable inference, we conclude that
the evidence was sufficient to support Rzepski’s conviction for intimidation.
The Commonwealth presented evidence that Rzepski domestically abused Ms.
Wahl when they were in Florida, and that she did not report that abuse to
authorities. After physically assaulting Ms. Wahl in this case, Rzepski
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repeatedly called her while he was in prison, despite a stay-away order. Ms.
Wahl testified as follows regarding Rzepski’s telephone calls from prison:
[Prosecutor]: What did [Rzepski] say to you on those phone calls?
[Ms. Wahl]: To the best of my knowledge to remember, he had
said that – something like he was going to kill himself in there if
he stayed without me. And then he kept telling me to remember
what I did in Florida for him. And he kept saying what I did in
Florida and he kept saying it.
[Prosecutor]: And, Ms. Wahl, what did that statement mean to
you?
[Ms. Wahl]: Drop charges.
[Prosecutor]: How did you feel when he said that?
[Ms. Wahl]: Scared.
[Prosecutor]: And why did it mean what it meant to you?
[Ms. Wahl]: Because this happened before.
N.T., 3/6/20, at 19.
Sitting as fact-finder, the trial court could reasonably infer that by
instructing Ms. Wahl to remember what she did for him in Florida, and by
threatening to kill himself if he had to remain in prison without her, Rzepski
intended to intimidate Ms. Wahl into, once again, dropping the charges of
domestic abuse against him. For these reasons, we conclude the evidence
was sufficient to establish each element of Rzepski’s intimidation conviction,
including the element of intent. Accordingly, Rzepski’s first issue merits no
relief.
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In his second issue, Rzepski contends that each of his convictions are
against the weight of the evidence. Initially, we must determine whether
Rzepski preserved his weight challenge for our review. Pursuant to
Pa.R.Crim.P. 607, a challenge to the weight of the evidence must be preserved
in a post-sentence motion or prior to sentencing orally or through a written
motion. Here, Rzepski purported to raise a weight challenge in his post-
sentence motion. See Post-Sentence Motion, 9/11/20, at 2-4. However,
Rzepski therein confined his weight challenge to his conviction for intimidation.
Therefore, he failed to preserve any weight challenge to his remaining
convictions. See Commonwealth v. Washington, 825 A.2d 1264, 1266
(Pa. Super. 2003) (holding that the failure to raise a weight challenge before
the trial court results in waiver of the claim on appeal).
Moreover, our review of Rzepski’s post-sentence motion reveals that,
rather than presenting a challenge to the weight of the evidence supporting
his intimidation conviction, he claimed only that the evidence was insufficient
to support that conviction. See Post-Sentence Motion, 9/11/20, at 2. Rzepski
claimed that “[t]here was no evidence indicating why [Ms. Wahl] took the
[instruction] in that way,” and that, “other than Ms. Wahl’s reaction, there
was no evidence that [Rzepski] intended to intimidate her by making that
statement.” Id. By repeatedly asserting there was “no evidence” to support
his intimidation conviction, Rzepski presented a challenge to the sufficiency of
the evidence rather than the weight of the evidence. Indeed, Rzepski made
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no assertion in his post-sentence motion that any particular fact established
at trial should be accorded greater weight than other facts. See
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (holding that,
when challenging the weight of the evidence, the appellant must convince the
trial court that notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice). Here, as Rzepski conflated a weight challenge with
a sufficiency challenge, he failed to preserve a weight challenge for our review.
See Commonwealth v. Sexton, 222 A.3d 405, 416 (Pa. Super. 2019)
(finding the appellant failed to develop a challenge to the weight of the
evidence because he conflated his weight and sufficiency claims).
Accordingly, Rzepski’s weight challenge is waived.
In sum, we conclude that the evidence was sufficient to support
Rzepksi’s intimidation conviction, and that he waived his challenge to the
weight of the evidence. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2022
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