Com. v. Wainman Jr., T. ( 2023 )

J-S24043-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS FRANCIS WAINMAN, JR. :
:
Appellant : No. 1418 MDA 2022
Appeal from the Judgment of Sentence Entered May 2, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000640-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS FRANCIS WAINMAN, JR. :
:
Appellant : No. 1428 MDA 2022
Appeal from the Judgment of Sentence Entered May 2, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004839-2020
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 26, 2023
Appellant, Thomas Francis Wainman, Jr., appeals from the judgment of
sentence entered in the Court of Common Pleas of Lancaster County after a
jury convicted him on one count of stalking1 at docket number CP-36-4839-
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2709.1(a)(1).
J-S24043-23
2020 and one count each of stalking2 and defiant trespass3 at docket number
CP-36-640-2021 for a course of conduct directed at his next-door neighbors.
Sentenced to consecutively-run, aggravate range sentences, Appellant
challenges the sufficiency of the evidence and the discretionary aspects of his
sentence. After careful review, we affirm based on the trial court’s
comprehensive opinion denying Appellant’s post-sentence motions.
The underlying facts of the present case begin with Appellant’s actions
occurring from the months of May through September of 2020, when he
persisted in behavior against his next-door neighbors that led to a series of
charges filed against him. Specifically, a May 14, 2020, incident led police to
charge him with summary harassment on May 19, 2020, a charge on which
he was found guilty on July 31, 2020. Trial Court Opinion, 9/6/2022, at 1.
The September 21, 2020, charge of stalking under docket 4839-2020
was based on an escalation in Appellant’s fixation with the neighbors
manifesting with his “walking the property line between the two homes at
night with a flash light; removing a wooden [survey] stake from the [family’s]
property without consent; throwing a brown substance over the back corner
of the [family’s] yard without consent, killing the grass; placing chairs on the
property line and staring directly into the windows and backyard of the
[family’s] home; and shining bright lights and pointing security cameras into
the [family’s] home.” TCO at 2. Particularly disturbing was an eyewitness
____________________________________________
2 18 Pa.C.S.A. § 2709.1(a)(1).
3 18 Pa.C.S.A. § 3503(b)(1).
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account of Appellant repeatedly swinging a sledgehammer into the ground
while yelling that he hated one of the family members and, on another
occasion, testimony that he followed the family’s daughters in his car while
flashing his high beams at them. N.T. (trial), Vol III, 2/11/22, at 535-550.
Such accounts generated police and court orders directing Appellant to avoid
any contact with the neighboring family or their property.
Appellant ignored these orders and admonitions on December 12, 2021,
when he entered the neighboring family’s property and made multiple trips
onto the front porch, ostensibly to deliver packages in the scope of his
employment with UPS. N.T. (trial), Vol II, at 263. The family watched from
their security cameras as Appellant drove off before circling back, parking the
vehicle near the family’s driveway, staring at the family’s front door with his
window down. The daughter who opened the door to retrieve the packages
testified that Appellant and she made eye contact multiple times before she
finished the task. Only then, she testified, did Appellant “speed away.” N.T.
at 268, 552. For this conduct, Appellant was charged with stalking and defiant
trespass at docket 640-2021.
On February 14, 2022, following a four-day consolidated trial, a jury
found Appellant guilty on two counts of stalking and one count of defiant
trespass. On May 2, 2022, the trial court, proceeding with the benefit of a
pre-sentence investigation report, imposed two aggravated range guideline
sentences of five and on-half to 11 months’ incarceration, and ordered that
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J-S24043-23
they run consecutively, for an aggregate sentence of 11 to 22 months’
incarceration.
On May 12, 2022, Appellant filed a timely post-sentence motion positing
that the verdict was against the weight or, in the alternative, the sufficiency
of the evidence, and that the court abused its sentencing discretion in
imposing manifestly excessive, aggravated range sentences. By order of
September 6, 2022, the trial court denied Appellant’s post-sentence motion.
This timely appeal follows.
Appellant raises the following two issues for this Court’s consideration:
I. Was the evidence presented by the Commonwealth
insufficient to prove beyond a reasonable doubt that
[Appellant] was guilty of Count 1, Stalking, pursuant to 18
Pa.C.S.A. § 2709.1 on docket 640-2021 where there was
insufficient evidence that [Appellant] acted with the intent
to place the victims in reasonable fear of bodily injury or
cause substantial emotional distress?
II. Did the trial court abuse its discretion by imposing
sentences on both dockets at the top of the aggravated
ranges of the sentencing guidelines without acknowledging
it was doing so or providing sufficient justification for doing
so and further abused its discretion by imposing said
sentences consecutively resulting in a sentence that was so
manifestly excessive to constitute too severe a punishment
and was not consistent with the protection of the public, the
gravity of the offenses and the rehabilitative needs of Mr.
Wainman?
Brief for Appellant, at 6-7.
After reviewing the parties’ briefs, the relevant case law, and the record
on appeal, we rely on the cogent and comprehensive September 6, 2022,
opinion authored by the Honorable David L. Ashworth, President Judge of the
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Court of Common Pleas of Lancaster County, to affirm Appellant’s judgment
of sentence. See Post-Sentence Motions Opinion, 9/6/22, at 3-14 (finding
verdict supported by sufficient evidence), 16-21 (imposing consecutively-run
sentences in the aggravated guideline range did not reflect an abuse of
discretion where the trial court explained its reasons for doing so on the
record, which included, inter alia: Appellant’s “utter fail[ure]” to acknowledge
his guilt or indicate he acted inappropriately; his persistent blaming of
everyone else but himself; his disturbing conduct in stalking his neighbors
after the harassment conviction; his filing of complaints against his neighbors
with the Attorney General’s Office, who quickly cleared the neighbors of any
wrongdoing; writing post-trial letters to the court and the district attorney
seeking re-litigation and including private information about his neighbors,
deemed inappropriate “deep digging” by the Commonwealth and the trial
court; and maintaining an obsessive attitude toward his neighbors that
justified the present sentence as an attempt to mitigate the possibility of
immediate retaliation against the family; and Appellant was not entitled to a
volume discount for his separate criminal acts).
We instruct the parties to attach a copy of President Judge Ashworth’s
decision in the event of further proceedings in the matter.
Judgment of sentence affirmed.
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J-S24043-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/26/2023
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Circulated 08/31/2023 04:54 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
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V. Nos. 4839-2020 & 0640-2021 '•!
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THOMAS FRANCIS WAINMAN, JR. iy
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OPINION CD
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BY: ASHWORTH, P.J., SEPTEMBER 6, 2022 c:)
v cl
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Defendant Thomas Francis Wainman, Jr., has filed atimely post-sentence
motion following his judgment of sentence on May 2, 2022. For the reasons set below,
this motion will be denied.
I. Background
On May 19, 2020, Defendant was cited by the Northern Lancaster County
Regional Police Department (" NLCRPD") for summary harassment' of his neighbors,
the Weaver family, following an incident on May 14, 2020, and was subsequently found
guilty. 2 Following, from May 2020 to September 2020, Defendant engaged in, inter alia,
the following acts, after having been cited for harassment: walking the property line
between the two homes at night with aflash light; removing awooden stake from the
Weavers' property without consent; throwing abrown substance over the back corner of
the Weavers' yard without consent, killing the grass; placing chairs on the property line
18 Pa.C.S.A. § 2709(a)(3).
sSee MJ-02208-NT-132-2020. Defendant was subsequently found guilty on July 31, 2020.
and staring directly into the windows and backyard of the Weaver home; and shining
bright lights and pointing security cameras into the Weaver home. See Complaint,
Docket No. 4839-2020 (" No. 4839-2020"), Affidavit of Probable Cause, at 5-10.
On December 12, 2020, despite repeated orders from the court and police,
Defendant entered the Weavers' property multiple times under the guise of delivering
packages for UPS. See Complaint, Docket No. 0640-2021 (" No. 0640-2021"), Affidavit
of Probable Cause at 2. Defendant was then subsequently charged with stalking and
defiant trespass at No. 0640-2021. Id. at 3-4. On October 28, 2021, the Commonwealth
consolidated the dockets pursuant to Rule 582(b)(2) of the Pennsylvania Rules of
Criminal Procedure. See Notice of Intent to Consolidate, 10/2812021.
On February 14, 2022, following afour-day jury trial, Defendant was found guilty
of the following: one count of stalking 3 at No. 4839-2020, in addition to asecond count
of stalking 4 and one count of defiant trespass 5 on consolidated Docket No. 0640-2021. 6
Sentencing Order at No. 4839-2020; Sentencing Order at No. 0640-2021. On May 2,
2022, Defendant was sentenced to two terms of five-and-a-half to eleven months'
incarceration, to be served consecutively. Id.
On May 12, 2022, Defendant filed atimely post-sentence motion asserting the
evidence presented at trial by the Commonwealth was insufficient to sustain his
convictions, or in the alternative, that his convictions are against the weight of the
318 Pa.C.S.A. § 2709.1(a)(1).
18 Pa.C.S.A. § 2709.1(a)(1).
s18 Pa.C.S.A. § 3503(b)(1)(i).
6Docket Nos. 4839-2020 and 0640-2021 were consolidated for trial on October 28, 2021. See
Notice of Intent to Consolidate, 10/2812021.
2
evidence and that his aggravated range sentence is manifestly excessive. Post-
Sentence Motion, at unenumerated 1-2. In response, the Commonwealth argues the
jury, as factfinder, found that the evidence to be sufficient to prove all three charges
beyond areasonable doubt. Commonwealth's Answer to Defendant's Post Sentence
Motion at unenumerated 1. The Commonwealth further asserts that this court reviewed
the prepared Pre- Sentence Investigation (" PSI") Report, provided on the record
explanation for the aggravated range sentence, and that the sentence was within
statutory guidelines. Id. at unenumerated 2-3.
II. Discussion
A. Sufficiency of the Evidence
"A claim challenging the sufficiency of the evidence is aquestion of law.
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 areasonable doubt." Commonwealth v. Rivera, 238 A.3d 482, 495 ( Pa. Super.
2020) (
quoting Commonwealth v. Widmer, 744 A.2d 745, 751-52, 560 Pa. 308(2000)). "When reviewing asufficiency claim the court is required to view the evidence
in the light most favorable to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence." Id. "
Where the evidence offered
to support the verdict is in contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient as amatter of law."
Widmer, supra at 751 (
citing Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876(1975)).
3
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances established by the
Commonwealth need not be absolutely 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. Lynch, 242 A.3d 339, 352 ( Pa. Super. 2020) (citations omitted).
Here, Defendant makes abald assertion that the Commonwealth's evidence was
insufficient to sustain aconviction for either crime charged, while failing to identify which
element or elements of the crime or crimes have not been met. See Post-Sentence
Mot., unenumerated 1-2. "The defendant in acourt case shall have the right to make a
post-sentence motion. All requests for relief from the trial court shall be stated with
specificity and particularity...." Pa.R.Crim.P. 720(B)(1)(a). Nevertheless,
[a] person commits the crime of stalking when the person 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.
18 Pa.C.S.A. § 2709.1(a)(1). The statute further defines "course of conduct" as:
[a] pattern of actions composed of more than one act over aperiod of
time, however short, evidencing acontinuity of conduct. The term
includes lewd, lascivious, threatening or obscene words, language,
drawings, caricatures or actions, either in person or anonymously. Acts
indicating acourse of conduct which occur in more than one jurisdiction
may be used by any other jurisdiction in which an act occurred as
evidence of acontinuing pattern of conduct or acourse of conduct.
18 Pa.C.S.A. § 2709.1(f). "An intent to place one in fear of bodily injury is but one mens
rea that will sustain aconviction under § 2709(a)[]. Alternatively, aconviction may be
upheld upon ashowing that the accused intended to harass, annoy, alarm or cause
4
substantial emotional distress." Commonwealth v. Miller, 689 A.2d 238, 240 ( Pa.
Super. 1997).
As such, to sustain aconviction for stalking, the factfinder, here, the jury, must
find that Defendant ( 1) engaged in acourse of conduct or series of repeated acts, which
(2) demonstrated intent to place the other in reasonable fear of bodily injury or to cause
them substantial emotional distress, beyond areasonable doubt. 18 Pa.C.S.A. §
2709.1(a)(1). During the Commonwealth's case in chief, 68 individual pieces of
evidence were admitted, testimony from victims Daryl, Lori, Emily and Kiersten Weaver
was given, in addition to testimony from neighbors and responding police officers, all of
which corroborated the allegations made by the Weavers, and support Defendant's
convictions of stalking beyond areasonable doubt.
To prove the Defendant engaged in acourse of conduct or series of repeated
acts, the Commonwealth presented photographs and testimony showing the Defendant
standing on, or near, the property line between the homes and staring directly into the
Weavers' windows or back yard on multiple dates. See Notes of Testimony ( N.T.), Trial
at 89, Ex. 6; Id. at 110, Ex. 13; Id. at 145, Ex. 27; Id. at 147, Ex. 28; Id. at 159, Ex. 33;
Id. at 261, Ex. 50; Id. at 355, Ex. 52; Id. at 356, Ex. 53; Id. at 358, Ex. 54; Id. at 362, Ex.
56; Id. at 363, Ex. 57; Id. at 517, Ex. 59; Id. at 520, Exs. 60, 61; Id. at 522, Exs. 62, 63,
64; and Id. at 526, Ex. 65.
On May 14, 2020, Ms. Lori Weaver and her daughters were in the backyard
mulching, while Mr. Daryl Weaver was working in the garage. N.T., Trial at 73. After a
time, Ms. Weaver went inside, visibly upset, and told Mr. Weaver that she saw the
Defendant filming her and the girls while they were mulching. Id. at 73-74. Mr. Weaver
5
stated he was stunned, but preferred to give his neighbor the benefit of the doubt. Id. at
74. He told Ms. Weaver to go back outside and act like nothing was wrong, so that he
could observe the situation from inside the house. Id. Mr. Weaver then observed the
Defendant filming Ms. Weaver and their daughters from multiple angles for multiple
minutes. Mr. Weaver took his own video of the Defendant filming the Weavers and
called the police. Id. at 74, 77.
Mr. Weaver testified that during Memorial Day weekend in 2020, his daughters
were swimming in the pool in their back yard. N.T., Trial at 102. During this time, Mr.
Weaver observed the Defendant standing at aportion of the fence separating
Defendant's back yard from the Weavers' and staring through the lattice into the pool.
Id. at 102-103. Mr. Weaver observed the Defendant do this multiple times, and on this
occasion decided to take avideo of Defendant staring into the pool through the lattice,
and notified the police. Id. at 103.
On multiple dates in May 2020, the Weavers' daughter, Emily Weaver, observed
Defendant staring at her through her bedroom and bathroom windows. On May 1, 2020,
Emily looked out her bedroom window and saw the Defendant outside near the property
line, staring at her through her bedroom window, and took aphotograph. N.T., Trial at
355. On May 6, 2020, Emily again captured aphotograph of Defendant staring into her
bedroom window, looking directly at her. Id. at 356. On May 12, 2020, Emily was in her
bathroom, directly next to her bedroom, and caught the Defendant staring at her
through the bathroom window and took aphotograph. All instances involving Emily
Weaver were reported to law enforcement. Id. at 359.
6
Mr. Weaver testified that he measured the distance from the property line to the
Weaver home to be approximately sixteen feet to the living room windows, and twenty-
four to twenty-six feet, from other points of the property. N.T., Trial at 165. On May 14,
2020, the Weavers reported multiple instances of disturbing behaviors from Defendant
to Officer Wildberger. Id. at 84-85. After the officer left, Defendant immediately
continued his behavior. Id. at 85. The Commonwealth presented photographs and
testimony showing Defendant placed achair on or about the property line between the
homes, and sat facing the Weavers home, staring into the windows or back yard on
multiple occasions.
Commonwealth: All right. After Officer Wildberger left, did the defendant
do anything once the police officers left?
Mr. Weaver: Oh, yeah.
Commonwealth: Okay. And at that time, what did the defendant do after
the police officers left?
Mr. Weaver: He took chairs, outdoor chairs, and put them along the
property line closest -- as close as he could get to our
house. Then over the next several, Iwould say, weeks,
they would -- him and his wife would sit there just -- I
don't know what they were doing. They would just sit
there.
Id. at 85-86. See also Id. at 86, Exs. 4 & 5; Id. at 93, Exs. 7 & 8; Id. at 101, Ex. 12; and
Id. at 238, Exs. 46, 47 & 49.
The Commonwealth also presented photographic and testimonial evidence that
Defendant shined lights and pointed security cameras into the Weavers' home and back
yard, further showing Defendant engaged in acourse of conduct or series of repeated
acts. N.T., Trial at 126, Exs. 16-21; Id. at 230, Exs 42 & 43. On June 15, 2020,
Defendant began shining spotlights into the Weaver home from inside his home. Id. at
7
226-27. Ms. Weaver testified that she took photographs from inside her home to show
the effect of the spotlight from her bedroom and her daughter Kiersten's bedroom, and
explained that even with black out curtains, the lights were too bright to sleep. Id. at
235-37.
Well, that was the one from dusk until dawn. And, Imean, Iknow at one
point Ihad gotten up at, like, 2:00 in the morning because, like, it's just
so bright. Imean, we got blackout curtains and stuff like that, but Iwas
so frustrated that Itook apicture of it. Yeah, just the ridiculousness and
the fact that there's just no reason.
Id. at 232. Ms. Weaver further testified that Defendant would shine the lights every night
"from dusk to dawn." Id. at 237.
On or around June 24, 2020, the Weavers noticed Defendant had mounted
security cameras to his home and pointed them directly at the Weavers' home. N.T.,
Trial at 123. At that time, Mr. Weaver took photographs of the three cameras he saw
pointing at his house, and later notified police. Id. After Defendant and his family moved,
the new owners showed the Weavers that there were actually four cameras, and
confirmed that they were all pointed at the Weavers' house. Mr. Weaver also took
pictures of the cameras and/or camera mounts at this time. Id. at 123-24.
The instances outlined herein are merely asample of the course of conduct
engaged in by Defendant for more than half ayear, as required for the first element of
stalking. 18 Pa.C.S.A. § 2709.1. As mentioned previously, acourse of conduct is "[a]
pattern of actions composed of more than one act over aperiod of time, however short,
evidencing acontinuity of conduct." 18 Pa.C.S.A. § 2709.1(f). From May to December
2020, Defendant demonstrated an alarming commitment to his course of conduct, which
continued after repeated warnings from police and two Magisterial District Court Judges
8
to stop any and all interactions involving the Weavers, and the Defendant simply
refused.
Concerning the second element of stalking, Defendant undoubtedly
demonstrated his clear intent to place the Weavers in reasonable fear of bodily injury or
to cause them substantial emotional distress. 18 Pa.C.S.A. § 2709.1(a)(1). Defendant
has offered no reason, excuse, or explanation for his actions, aside from outright denial,
asserting that the Weavers misunderstood what he was doing, or insisting it was not his
intent to cause emotional distress. Defendant has expressed zero remorse, nor offered
asingle apology for the obvious harm he caused up and through his sentencing
hearing. N.T., Sentencing at 38. Defendant continually and repeatedly took actions
which could reasonably serve no other purpose except to harass, annoy, alarm, and
cause substantial emotional distress to the Weaver family, and unfortunately, Defendant
was very successful. Miller, 689 A.2d at 240.
Mr. Weaver described Defendant's actions as "adeath by athousand cuts." N.T.,
Trial at 144. While Ms. Weaver described the impact of Defendant's conduct as, " It's
like ahuge ball of, like, just all kinds of emotion. It felt like constant torment. Just like --
and for years. Like years, literally. It's just been horrible." Id. at 279. As aresult of
Defendant's conduct, the Weaver children no longer feel safe, and the family was forced
to implement safety and emergency plans:
Commonwealth: Did you put into place aplan for your daughters as to
whether they were allowed to leave the house by
themselves?
Mr. Weaver: Yeah. They weren't allowed to. They had to stay in pairs
and go to work. We ended up monitoring or making them
actually let us know when they're at work.
9
We have athing where we can see their location and
then we make them text us and that's -- that's pretty sad
because my daughter -- you know, my oldest daughter is
a22-year-old. She just turned 23. She's a23-year-old
woman. But she's my daughter and Iwant to know if
she's safe. So we ended up putting those plans in place.
Mr. Weaver: Imade all my kids give me their cell phones. So the way I
have it set up, when they get toward -- like near our house,
within acertain radius, it turns on our front porch light. And
it turns on our kitchen above our sink light. So Iknow that
they're lit up when they get home.
Id. at 169-71.
Moreover, Emily Weaver testified that Defendant's conduct "consumed her life."
N.T., Trial at 370. " My room is dark most of the day. I've been losing sleep. I've been
losing sleep for the last couple of years just because Ialways have the feeling that I'm
being watched or being talked about outside of my own house. And there's been no
comfort in my home." Id. at 374. Kiersten Weaver testified that she lives in a "constant
state of fear." Id. at 555. 1 don't like to leave work alone. Iwalk along the street with my
keys in my hands if I'm leaving work alone late at night. I'm constantly looking over my
shoulder to the point that it's almost like it's paranoia. It's every aspect of my life." Id. at
556.
Viewing the evidence in the light most favorable to the Commonwealth as the
verdict winner, Iconclude that there was sufficient evidence to establish that Defendant
engaged in acourse of conduct, or series of repeated acts, which demonstrated intent
to place the Weavers in reasonable fear of bodily injury or to cause them substantial
emotional distress. Therefore, the evidence is sufficient as amatter of law. 18 Pa.C.S.A.
§2709.1(a)(1).
10
Next, Defendant was convicted of one count of defiant trespass. "A person
commits defiant trespass when, knowing that he is not licensed or privileged to do so,
he enters or remains in any place as to which notice against trespass is given by: ( i)
actual communication to the actor." 18 Pa.C.S.A. § 3503(b)(1)(i). Thus,
i]n order to establish aviolation it is necessary to prove that the
defendant: 1) entered or remained upon property without aright to do so;
2) while knowing that he had no license or privilege to be on the property;
and 3) after receiving direct or indirect notice against trespass.
Commonwealth v. Wanner, 158 A.3d 714, 718 ( Pa. Super. 2017) (emphasis in
original) (
quoting Commonwealth v. Namack, 663 A.2d 191, 194 ( Pa. Super. 1995)).
As with the convictions for stalking, Defendant does not offer insight as to how the
evidence was insufficient to support his conviction for defiant trespass with any
specificity or particularity as required by Pa.R.Crim.P. 720(B)(1)(a). Nonetheless, the
evidence of record is clear and meets each element of defiant trespass.
From May through December of 2020, Defendant entered onto the Weavers
property without consent on multiple occasions. On July 16, 2020, Mr. Weaver observed
Defendant throwing abrown substance over newly grown grass in the Weavers' yard,
without consent. N.T., Trial at 138-39. Mr. Weaver was able to film Defendant throwing
the substance and called the police. Id. at 139. The following day, Defendant was cited
for criminal trespass, and on July 31, 2020, Defendant was before Magisterial District
Judge (MDJ) Edward Tobin. Id. Defendant was convicted of summary harassment and
summary criminal trespass resulting from the May 14, 2020, and July 16, 2020,
incidences. Id. At that time, Defendant was told by MDJ Tobin to stop all contact with
Weavers. Id. at 464; Exs. 25 & 26.
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On August 1, 2020, one day after his conviction for summary harassment and
summary criminal trespass, Defendant thought it prudent to speak to Ms. Weaver in the
back yard. N.T., Trial at 255. Ms. Weaver testified to the incident:
So, July 31st, the date before this happened, we had had ahearing at
Judge Tobin's in Lititz that he was found guilty of trespassing and
harassment from, like, other stuff that he was doing all along. And then
the very next day, I'm out, like, cooking dinner on the grill and he yells —
he was told not to have any contact with us, first of all. He yells over, I
hope you're having awonderful day. Ilet it go, just let it go. And then he
said, Mrs. Weaver, can Icome on your property and put some bricks
down? And Iwas like, Judge Tobin just told you yesterday, you're not to,
like, have contact with us. Like, leave us. And then he starts. Like, he
goes on these rants then and just starts yelling and screaming and
saying, like, what an awful person Iam, just get over it, like, all kinds of
just -- Ijust wanted -- want nothing to do with him. Just leave us alone.
Id. Because Defendant's rant was loud and went on for some time, amember of the
Weaver household was able to hear him from her bedroom inside the Weaver home
and was able to film Defendant's actions. Id. at 256. The Weavers reported the incident
and showed the video to police. Id.
On August 7, 2020, Mr. Weaver observed Defendant reach over the property line
into the Weavers yard, remove one of multiple wooden surveyor stakes, and throw it in
the trash in his own yard. Mr. Weaver filmed the incident and reported it to the police.
N.T., Trial at 142-44. On August 21, 2020, Defendant again spoke to Ms. Weaver while
outside, and asked her if he could come on to her property to mulch. Id. at 254.
On November 2, 2020, Defendant appeared before MDJ Tony S. Russell for a
preliminary hearing.' At that time, Judge Russell told the Defendant again that he was
not have no contact with the Weavers or their property. N.T., Trial at 14, 618-19. On
November 14, 2020, Ms. Weaver was in her kitchen watching asquirrel hang upside
I See MJ-02207-CR-185-2020.
12
eating the seeds out of asunflower in her garden. Id. at 261. She thought it was
adorable and decided to film it, and as she did, she saw Defendant standing near the
porch on her property, staring into the family room windows. She took aphoto of
Defendant staring in and later informed police. Id. at 261.
On December 12, 2020, Officer Twaddell of the NLCRPD was on patrol in the
area of Knightsbridge Road and Queens Gate Road in Lititz$ and observed Defendant
standing next to avehicle with its emergency lights flashing. See Complaint, Docket No.
0640-2021, Affidavit of Probable Cause, at 7-9. Officer Twaddell briefly engaged in
friendly conversation with Defendant who informed the officer that he worked for UPS
and was delivering packages in the area. Id. at 8.
Shortly thereafter, Mr. and Ms. Weaver were in their kitchen when they received
anotification from their security cameras that there was activity at the front door. N.T.,
Trial at 263. Ms. Weaver opened the application on her phone which allowed her to
view all of their security cameras, and she saw Defendant at her front door leaving a
package on her porch. She then watched Defendant making multiple trips from the
street to the Weaver front porch, ostensibly delivering packages. Id. at 265. On her
camera, she observed Defendant drive off, but circle back, and then park near the
Weavers' driveway, staring at the Weavers' front door, with his window down. Id. at 267.
While Ms. Weaver watched Defendant stare at the home, Kiersten Weaver brought in
the packages from the front porch. Id. at 268. Kiersten stated she made eye contact
with Defendant multiple times, and when she was finished bringing in the packages, she
saw Defendant speed away. Id. at 268, 552.
B Where Defendant and the Weavers resided at the time, respectively.
13
The absolute latest date Defendant could claim that he was unaware that he did
not have consent to enter or remain on the Weaver property was July 31, 2020. No less
than five times after being convicted for criminal trespass did Defendant enter or remain
on the Weavers' property without right, privilege, license, or consent to do so, all while
knowing, without question or doubt, that he had no right, after receiving direct notice
against trespassing from two judges. The evidence admitted at trial satisfied every
element of defiant trespass, and as such is sufficient as amatter of law to uphold
Defendant's conviction. Wanner, 158 A.3d at 718; 18 Pa.C.S.A. § 3503(b)(1)(i).
In ajury trial, the jury is the sole arbiter of fact and credibility: " It [i]s within the
province of the jury as factfinder to resolve all issues of credibility, resolve conflicts in
evidence, make reasonable inferences from the evidence, believe all, none, or some of
the evidence...." Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006).
Here, the jury obviously found the evidence admitted and the testimony given credible,
and in doing so found that the evidence was sufficient to prove Defendant committed
two counts of stalking and one count of defiant trespass beyond areasonable doubt.
Defendant's claim that there was insufficient evidence to support any of his convictions
is without merit and must be denied.
B. Weight of the Evidence
In the alternative to his sufficiency claim, Defendant argues that his convictions
are against the weight of the evidence. See Post-Sentence Motion at unenumerated 1-
2. A claim that the verdict is contrary to the weight of the evidence "concedes that there
is sufficient evidence to sustain the verdict, but nevertheless contends that the trial
14
judge should find the verdict so shocking to one's sense of justice and contrary to the
evidence as to make the award of anew trial imperative." Commonwealth v.
Robinson, 834 A.2d 1160, 1167 ( Pa. Super. 2003). See also Commonwealth v.
Thompson, 106 A.3d 742, 758 ( Pa. Super. 2014). Our Supreme Court has summarized
the standard to be applied in addressing a "weight of the evidence" issue:
A weight of the evidence claim is primarily directed to the discretion of
the judge who presided at trial, who only possesses ' narrow authority'
to upset ajury verdict on aweight of the evidence claim.... Assessing
the credibility of witnesses at trial is within the sole discretion of the
fact-finder.... A trial judge cannot grant anew trial merely because of
some conflict in testimony or because the judge would reach adifferent
conclusion on the same facts, but should only do so in extraordinary
circumstances, 'when the jury's verdict is so contrary to the evidence
as to shock one's sense of justice and the award of anew trial is
imperative so that right may be given another opportunity to prevail.'...
On review, an appellate court determines whether the trial court
abused its discretion based upon review of the record; its role is not to
consider the underlying question in the first instance.
Commonwealth v. Blakeney, 596 Pa. 510, 522-23, 946 A.2d 645, 652-53 (2008)
(citations omitted). The appellate court reviews the exercise of discretion by the trial
court, " not ... the underlying question of whether the verdict is against the weight of the
evidence." Commonwealth v. Clay, 619 Pa. 423, 432, 64 A.3d 1049, 1055 ( 2013)
(citation and emphasis omitted). Application of these concepts to the facts presented at
trial requires this court to reject Defendant's challenge to the weight of the evidence in
this case.
In this alternative assertion, Defendant has also failed to plead with specificity or
particularity his claim that his convictions are against the weight of the evidence as
required by Pa.R.Crim.P. 720(B)(1)(a). This court will not hypothesize as to which
evidence Defendant believes should have more or less weight. However, "aweight of
15
the evidence challenge contests the weight that is accorded the testimonial evidence."
Commonwealth v. Morgan, 913 A.2d 906, 909 ( Pa. Super. 2006) (
citing Armbruster
v. Horowitz, 744 A.2d 285, 286 (Pa. Super.1999)).
After thorough review of the testimonial evidence, this court can find no issues
concerning the credibility of the testimony given by the Weaver family, their neighbors,
or law enforcement officers. Each witness gave clear testimony concerning the actions
taken by Defendant to harass, stalk, and trespass on the Weaver family and their
property. The defense did not offer or elicit testimony contradicting the testimony of the
witnesses called by the Commonwealth. All of the testimony elicited by the
Commonwealth corroborated the Weaver family's allegations against Defendant, and
there is nothing of record to suggest that any testimony was not credible. Finally, the
conclusions reached by the jury were reasonably based in the law and the evidence of
record admitted by the Commonwealth, and as such, none of the verdicts could serve to
shock aperson's sense of justice. The jury in this case was free to believe that all,
some, or none of the testimony at trial was credible, and in doing so determined that
Defendant was guilty of two counts of stalking and one count of defiant trespass, all
beyond areasonable doubt. Commonwealth v. Cruz, 919 A.2d 279, 281 ( Pa. Super.
2007). Defendant's claim that his convictions are against the weight of the evidence, is
without out merit and denied.
C. Abuse of Discretion in Sentencing
Defendant challenges only the discretionary aspect of his sentencing. Ibegin by
noting that Pennsylvania law provides trial courts with broad discretion in sentencing
16
criminal defendants "because of the perception that the trial court is in the best position
to determine the proper penalty for aparticular offense based upon an evaluation of the
individual circumstances before it." Commonwealth v. Hoch, 936 A.2d 515, 519 ( Pa.
Super. 2007) (
quoting Commonwealth v. Ward, 524 Pa. 48, 52, 568 A.2d 1242, 1243
(1990)). That discretion, however, is not without its limitations. The Pennsylvania
Supreme Court has instructed: "[A] trial court must 'follow the general principle that the
sentence imposed should call for confinement that is consistent with the protection of
the public, the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant."' Commonwealth
v. Mouzon, 571 Pa. 419, 424, 812 A.2d 617, 620 (2002) (footnote omitted). See 42 Pa.
C.S.A. § 9721(b). A trial court will be found to have abused its discretion only if "the
sentencing court ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at amanifestly unreasonable decision."
Commonwealth v. Hardy, 939 A.2d 974, 980 ( Pa. Super. (2007).
On May 2, 2022, Defendant was sentenced to two terms of five-and-a- half to
eleven months' incarceration, to be served consecutively. 9 Sentencing Order — No.
4839-2020; Sentencing Order— No. 0640-2021. In his final post-sentence claim,
Defendant asserts this court abused its discretion in sentencing because five-and-a- half
to eleven months' incarceration is an aggravated range sentence, thus manifestly
excessive, and that the court abused its discretion in having issued consecutive
sentences from separate dockets. See Post-Sentence Motion at 2. Defendant is
mistaken.
0The sentences of record are specific to the stalking charges, 18 Pa.C.S.A.§ 2709.1(a)(1). No
further penalty was given by this court for the defiant trespass conviction.
17
"To determine the suggested sentence for each conviction, sentencing courts
must determine the defendant's prior record score and... the [offense gravity score]
OGS of each offense. Section 303.15 sets forth the OGS for every offense contained
within the Pennsylvania Crimes Code." Commonwealth v. Hand, 252 A.3d 1159, 1168
(Pa. Super. 2021) (
citing 204 Pa. Code §§ 303.2(a) and 303.15)). Here, Defendant had
aprior record score of zero coming into sentencing. N.T., Sentencing at 3. Stalking, a
first-degree misdemeanor, has an OGS of four. See Guideline Sentence Form,
7/27/2022, Nos. 4839-2020 & 0640-2021. Pursuant to 204 Pa. Code § 303.16, aprior
record score of zero, with an OGS of four, has astandard range sentence of zero
("restorative sanctions" in lieu of incarceration) to three months' incarceration, with plus
or minus three months for an aggravated or mitigated sentence, respectively. Id. As
such, an aggravated range sentence for stalking is three to six months' incarceration.
204 Pa. Code § 303.16. Defendant is correct in asserting his sentence falls within the
aggravated range. Defendant is incorrect in asserting an aggravated range sentence is,
without more, an abuse of discretion.
The sentencing court is not bound to the sentencing guidelines, nor is it bound to
issue asentence within the standard sentence range. Nonetheless, "[i]n every case in
which the court imposes asentence for afelony or misdemeanor... the court shall
make as apart of the record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed." 18 Pa-C.S.A. § 9721(b).
At sentencing, this court explained on the record, at length the reasons for Defendant's
sentence as issued. First, Defendant utterly failed to acknowledge his guilt or culpability
for his actions, or to indicate in any meaningful way that be believed his actions were in
18
any way inappropriate, and he continued, up and through his sentencing hearing, to
blame everyone for his problems, except himself. N.T., Sentencing at 38-39.
Secondly, Defendant's conduct after his convictions shows his continued
commitment to stalking the Weavers, and to his continued denial of all responsibility.
During Defendant's sentencing hearing, the Commonwealth informed the court that in
March of 2021, Defendant filed complaints against the Weavers with the Pennsylvania
Attorney General's Office alleging, inter alia, the Weavers committed perjury during his
trial. N.T., Sentencing at 31-32. The Weavers were quickly cleared of any wrong doing
by the Attorney General's Office. Id. Further, after trial, Defendant wrote multiple letters
to the court, the District Attorney's Office, and law enforcement attempting to relitigate
his case. Id. at 33. The letters included private information about the Weavers and some
concerning events that took place after Defendant's trial ended, strongly indicating that
Defendant engaged in what the Commonwealth referred to as "deep digging" into the
Weaver family after his conviction. Id. at 32-33. After warnings from police, orders from
the court, and unanimous convictions, Defendant has unequivocally refused to stop his
obsessive behavior. Id. at 33. This court holds there is reasonable probability that, if
Defendant's sentence was in the mitigated or standard range, Defendant's behavior
would not only continue, but could escalate beyond stalking. His sentence reflects an
attempt to mitigate that possibility. Id. at 40.
Defendant has not indicated with specificity or particularity why he believes his
sentence is manifestly excessive, only that it is. See Post-Sent Motion at unenumerated
2. However, the record does not show that this court " ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
19
manifestly unreasonable decision." Hardy, 939 A.2d at 980. A sentence that upwardly
deviates from the standard guideline sentence serves to ensure public safety, and to
respect the incredible and lasting impact his crimes had, and continue to have, on the
Weaver family.
Regarding Defendant's claim that this court abused its discretion in issuing
consecutive sentences, Defendant has not provided any explanation or legal authority
to support this claim. Although Pennsylvania's system stands for individualized
sentencing, the court is not required to impose the "minimum possible" confinement.
Commonwealth v. Wall, 592 Pa. 557, 570, 926 A.2d 957, 965 ( 2007). In fact, our
appellate courts have expressed disapproval of routinely running sentences
concurrently lest criminals receive a "volume discount" for their separate criminal acts.
See Commonwealth v. Austin, 66 A.3d 798, 808 ( Pa. Super. 2013) (
citing
Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212 ( 1995) (stating an
Defendant is not entitled to "volume discount" for his crimes by having all sentences run
concurrently)). Consecutive sentences will be overturned only if the sentence imposed
was "clearly unreasonable." Commonwealth v. Fiascki, 886 A.2d 261, 264 (Pa.
Super. 2005). "A sentence is 'clearly unreasonable' if it 'violates the requirements and
goals of the [Sentencing] Code."' Id.The relevant statute governing sentencing states: " In determining the sentence to
be imposed the court shall ... consider and select one or more of the following
alternatives, and may impose them consecutively or concurrently." 42 Pa.C.S.A.
§9721(a) (emphasis added). The sentencing alternatives include: "( 1) An order of
probation. ... (3) Partial confinement [and] (4) Total confinement...." Id. Long
20
standing precedent recognizes that 42 Pa.C.S.A. § 9721 affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed, upon consideration of the
individual circumstances concerning the defendant and the many crimes he committed.
See Commonwealth v. Johnson, 961 A.2d 877, 880 ( Pa. Super. 2008) (
citing
Commonwealth v. Marts, 889 A.2d 608, 612 ( Pa. Super. 2005)).
This court's sentencing decision resulted from adispassionate, balanced and
scrupulous review of the entire record in this case. Defendant has failed to offer any
argument that the sentence imposed is other than " consistent with the protection of the
public, the gravity of the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. §
9721(b). As Defendant's sentence was neither so manifestly excessive as to constitute
too severe apunishment nor clearly unreasonable given the nature of the crimes
committed and the circumstances of the cases, his motion to reconsider the sentence
must be denied.
III. Conclusion
For the reasons set forth above, Defendant Thomas Francis Wainman's post-
sentence motion will be denied.
Accordingly, Ienter the following:
21
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
V. Nos. 4839-2020 & 0640-2021
THOMAS FRANCIS WAINMAN, JR.
ORDER
AND NOW, this 6'h day of September, 2022, upon consideration of Defendant
Thomas Francis Wainman's post-sentence motion, and the Commonwealth's response
thereto, it is hereby ORDERED that said motion is DENIED.
Pursuant to Pa.R.Crim.P. 720, this Court advises Defendant that he has the right
to appeal from this Order. Defendant shall have 30 days from the date of this final Order
to appeal to the Superior Court of Pennsylvania. Failure to appeal within 30 days will
result in the loss of appellate rights. Defendant is further advised that he has the right to
assistance of counsel in the preparation of the appeal. If Defendant is indigent, he has
the right to appeal in forma pauperis and to proceed with assigned counsel as provided
in Pa.R.Crim.P. 122.
I-
D,,1 a L. ASHWORTH
D
PRESIDENT JUDGE
Copies: Assistant District Attorney Janie A. Swinehart
Michael V. Marinaro, Esquire