Com. v. Luchsinger, K.

J-S21021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH GERALD LUCHSINGER
Appellant No. 2093 EDA 2015
Appeal from the Judgment of Sentence October 28, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003747-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 17, 2016
Kenneth Gerald Luchsinger appeals from his judgment of sentence,
entered in the Court of Common Pleas of Bucks County, following his
convictions for simple assault,1 recklessly endangering another person
(“REAP”),2 false imprisonment,3 and stalking.4 After careful review, we
affirm on the thorough opinion of the Honorable Albert J. Cepparulo.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2701(a)(1).
2
18 Pa.C.S. § 2705.
3
18 Pa.C.S. § 2903(a).
4
18 Pa.C.S. § 2709.1(a)(1).
J-S21021-16
In 2014, Luchsinger, who was 56 years old, was living in the home of
his 78-year-old mother Geraldine Luchsinger (Mother). They had a
contentious relationship, as evidenced by the fact that in 2007 and 2010,
Mother obtained protection from abuse (PFA) orders against Luchsinger, and
on March 31, 2011, Luchsinger was found guilty of simple assault and
harassment against Mother.
In late 2013, following the expiration of the second PFA, Luchsinger
moved back into Mother’s home. As the trial court noted:
In March of 2014, [Mother] fractured her hip after falling in the
shower and [Luchsinger] helped her out of the bathtub. She had
to undergo surgery and as a result she could not “get around too
good.” It was painful for [Mother] to walk around and she had
to use a walker. [Luchsinger] helped her maintain the property
during this time and occasionally cooked meals for her while she
was in rehabilitation.
On May 17, 2014, [Luchsinger] was still residing in [Mother’s]
residence. [Mother] was home sleeping in bed at approximately
three (3) o’clock in the morning when she was awoken to her
alarm system alerting her someone had opened her back door
approximately six (6) times in a row. [Mother] made her way to
the kitchen of her residence and saw [Luchsinger]. [Luchsinger]
proceeded to lift her up by her back with both hands, which she
testified caused pain in her neck. [Luchsinger] then pushed her
over onto the hardwood kitchen floor. When [Mother] thereafter
fell onto the kitchen floor, she also experienced pain in her hip.
She was on the floor for approximately one (1) hour while
Defendant continuously “yelled” at her and inquired as to why
she “didn’t love him” and accus[ed] her of loving her other son
(who has since died) more. [Mother] testified that when
[Luchsinger] accused her of this, she responded, “Yes. Billy
always stuck up for me when your father was hitting me.” When
[Mother] would attempt to provide him with a response, he
would yell “wrong answer” and stated, “if you don’t give me the
right answer, I’m going to put those dirty socks in your mouth.”
-2-
J-S21021-16
[Luchsinger] then left the room momentarily and came back with
two (2) socks and stuffed them into [Mother’s] mouth by
pushing her head back and twisting them around in an attempt
to fit them. [Mother] testified she struggled and felt as though
she was unable to breathe. [Mother] did not try to get up from
the floor during this incident because she was “really afraid” of
[Luchsinger] did not know what he would do next.
The assault concluded when [Luchsinger], while [Mother] was
still sitting on the floor of the kitchen, went into the TV room and
shut the door. [Mother] pulled herself up onto a chair and sat in
the living room, as she was too scared to move further. She
testified that around 7:00 A.M. [Luchsinger] went outside and
cut the front lawn. Before [Luchsinger] left the residence to cut
the grass, he stated, “I’m going to set you on fire, and I’ll throw
you back in the woods in this big hole back there.” [Mother]
testified that she was “scared to death” and, as a result, did not
call police.
Prior to this assault, [Mother] did not have any injuries on her
body aside from her hip. She sustained a scratch and bruising to
her face, bruising on her rear, and bruising on her arm.
[Mother] continues to suffer pain in her back as a result of this
incident. She further testified that her hair was also forcefully
pulled out by [Luchsinger].
Trial Court Opinion, 8/13/15, at 3-5 (citations omitted).
At the conclusion of a non-jury trial on October 28, 2014, the court
convicted Luchsinger of the above referenced offenses, and imposed an
aggregate sentence of 3 to 9 years’ incarceration plus two years of
probation.
Luchsinger filed timely post-sentence motions, which the court denied
on May 29, 2015.
This timely appeal followed in which Luchsinger asserts that the
evidence was insufficient to sustain a guilty verdict for simple assault, REAP,
false imprisonment, and stalking.
-3-
J-S21021-16
Our standard of review in assessing a challenge of the sufficiency of
the evidence is well-settled.
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt.
Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation o
mitted).
“Any doubts concerning an appellant’s guilt [are] to be resolved by the
trier to fact unless the evidence was so weak and inconclusive that no
probability of fact could be drawn therefrom.” Commonwealth v. West,
937 A.2d 516, 523 (Pa. Super. 2007). “[T]he Commonwealth may sustain
its burden of proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.” Commonwealth v. Perez,
931 A.2d 703, 707 (Pa. Super 2007).
Our review of Judge Cepparulo’s Rule 1925(a) opinion leads us to
conclude that it thoroughly and comprehensively addresses the issues raised
by Luchsinger, including the claim that he should be permitted to raise
issues of ineffective assistance of counsel on direct appeal.
We affirm the judgment of sentence based on Judge Cepparulo’s
decision. We direct the parties to attach that decision in the event of further
proceedings in the matter.
-4-
J-S21021-16
Judgment of sentenced affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2016
-5-
Circulated 03/04/2016 09:25 AM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA No. CP-09-CR-0003747-2014
2093 EDA 2015
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OPINION .. •ii O"
I. INTRODUCTION
Appellant/Defendant Kenneth Gerald Luchsinger appeals to the Superior Court of
Pennsylvania from this Court's conviction and judgment of sentence. We file this Opinion
pursuant to Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(a).
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 18, 2014, Defendant was charged with Simple Assault, 1 Recklessly Endangering
Another Person ("REAP"), 2 False Imprisonment, 3 Disorderly Conduct,4 and two (2) counts of
Stalking.5 All charges were held for Common Pleas court following a preliminary hearing which
took place on June 24, 2014.6 The Criminal Information reflected only one (1) count of Stalking.
A Motion in Limine was filed by the Commonwealth on September 8, 2014 regarding
admissibility of Defendant's prior bad acts and convictions pursuant to Pennsylvania Rule of
Evidence ("Pa.RE.") 404(b)(2).
1 18 Pa.C.S. § 270l(a)(l).
2
18 Pa.C.S. § 2705.
3
18 Pa.C.S. § 2903(a).
4 18 Pa.C.S. § 5503(a)(4).
5 18 Pa.C.S. § 2709.l(a)(l).
6
An Aggravated Assault count (18 Pa.C.S. § 2702(a)(l)) was added to the Criminal Complaint at the Preliminary
Hearing but was dismissed thereafter by the Magisterial District Justice.
Page 1 of20
On October 1, 2014, Defendant filed a Petition for Writ of Habeas Corpus, arguing that
the charges were improperly held for court as the Commonwealth's evidence was insufficient as
a matter of law to establish a prima facie case. The Notes of Testimony from the preliminary
hearing were attached to the motion.
On October 27, 2014, this Court heard pre-trial motions. Defendant's prior contacts
and/or offenses regarding the victim in this case were recited on the record by the District
Attorney. In 2007, Ms. Luchsinger (the complaining witness in this case) received a Protection
from Abuse ("PF A") Order against Defendant which did not expire until September 4, 2010.
N. T. 10/27 /14, 40-41; Exhibit ("Exh.") CS-6- 7. Both parties stipulated to the fact that Defendant
was convicted of Simple Assault and Harassment on March 31, 2011 for crimes committed
against Ms. Luchsinger.7 N.T. 10/27/14, 38; Exh. CS-1. In 2010, the victim received a second
PFA Order against Defendant which did not expire until 2013. N.T. 10/27/14, 27-28; Exh. CS-4-
5. Defendant complied with the condition of both PFA Orders that he was not to have contact
with Ms. Luchsinger during this time. N.T. 10/27/14, 40-41. Following review of the evidence
presented to the Magisterial District Judge (including a Written Statement given by Ms.
Luchsinger8 and photographs depicting her injuries"), the Notes of Testimony from the
preliminary hearing, as well as documentation of Defendant's prior conviction PFA petitions
against him, relevant case law and argument from both counsel, we granted Defendant's Habeas
Motion as to the Disorderly Conduct charged and dismissed the Motion as to the remaining
charges. Furthermore, in terms of the prior conviction and PF A Orders, we granted that the
7
The incident underlying the charges occurred on November 10, 2010. N.T. 10/27/14, 26.
8
See Exh. CS-2.
9
See Exh. CS-3.
Page 2 of20
Commonwealth could admit that evidence as substantive proof of the "course of conduct"
element of the Stalking charge. N.T. 10/27/14, 69.
For purposes of trial, we ruled that the 2007 PFA application and Order were
inadmissible on the basis of being unduly prejudicial pursuant to Pennsylvania Rule of Evidence
("Pa.RE.") 403.
We proceeded with a waiver trial on Simple Assault, REAP, False Imprisonment and
Stalking.
At trial, Ms. Luchsinger testified that beginning in November or December 2014, her son,
Defendant Kenneth Luchsinger, was residing with her at her residence located at 4615 Gary
Drive in Bristol Township, Bucks County. N.T. 10/27/14, 79, 81. For the first couple of weeks
of Defendant's residence, Ms. Luchsinger described that it was "okay." Id. at 82. Ms.
Luchsinger testified that Defendant fixed the chimney and did chores around the house. Id. at
124. However, thereafter Defendant was "mean" to Ms. Luchsinger and would constantly yell at
her, slam things around the house often causing damage and not permitting her to enter the TV
room which he began to inhabit as his personal "apartment." Id. at 82-83, See Exh. C-8. The
TV room was equipped with a back door leading to the exterior of the residence. Id. at 84.
In March of2014 Ms. Luchsinger fractured her hip after falling in the shower and
Defendant helped her out of the bathtub. Id. at 87. She had to undergo surgery and as a result
she could not "get around too good." Id. at 85-86, 155. It was painful for Ms. Luchsinger to
walk around and she had to use a walker. Id. at 86, 15 5. Defendant helped her maintain the
property during this time and occasionally cooked meals for her while she was in rehabilitation.
Id. at 126-27.
Page 3 of20
On May 17, 2014, Defendant was still residing in Ms. Luchsinger's residence. Id. at 79.
Ms. Luchsinger was home sleeping in bed at approximately three (3) o'clock in the morning
when she was awoken to her alarm system alerting her someone had opened her back door
approximately six (6) times in a row. Id. at 87~88.10 Ms. Luchsinger made her way to the
kitchen of her residence and saw Defendant. Id. at 88. Defendant proceeded to lift her up by her
neck with both hands, which she testified caused pain in her neck. Id. at 88, 91-92. Defendant
then pushed her over onto the hardwood kitchen floor. Id. at 88, 91-92, 95, 137. When Ms.
Luchsinger thereafter fell onto the kitchen floor, she also experienced pain in her hip. Id. at 95.
She was on the floor for approximately one (1) hour while Defendant continuously "yelled" at
her and inquired as to why she "didn't love him" and accusing her of loving her other son (who
has since died) more. Id:. at 95, 112. Ms. Luchsinger testified that when Defendant accused her
of this, she responded "Yes. Billy11 always stuck up for me when your father was hitting me."
Id. at 112. When Ms. Luchsinger would attempt to provide him with a response, he would yell
"wrong answer" and stated "If you don't give me the right answer, I'm going to put those dirty
socks in your mouth." Id. at 95.
Defendant then left the room momentarily12 and came back with two (2) socks and
stuffed them into Ms. Luchsinger's mouth by pushing her head back and twisting them around in
an attempt to fit them in. Id. at 96-97, See Exh. C-10. Ms. Luchsinger testified she struggled
and felt as though she was unable to breathe. Id. at 97. Ms. Luchsinger did not try to get up
from the floor during this incident because she was "really afraid" of Defendant and did not
know what he would do next. Id. at 98-99.
10
The alarm system does not automatically signal the security company or police when someone enters the back
door, as the resident has to push a button in order to dial police. N.T. 10/27/14, 128-29.
II
Ms. Luchsinger's other son.
12
Ms. Luchsinger testified at this time she was afraid to move and "scared to death." N.T. 10/27/14, 137.
Page 4 of20
The assault concluded when Defendant, while Ms. Luchsinger was still sitting on the
floor of the kitchen, went into the TV room and shut the door. Id. at 98. Ms. Luchsinger pulled
herself up onto a chair and sat in the living room, as she was too scared to move further. Id. at
98, 107. She testified that around 7:00 a.m. Defendant went outside and cut the front lawn. Id.
Before Defendant left the residence to cut the grass, he stated "I'm going to set you on fire, and
I'll throw you back in the woods in this big hole back there." Id. at 99, 115. Ms. Luchsinger
testified that she was "scared to death" and, as a result, did not call police. Id. at 99, 108.
Prior to this assault, Ms. Luchsinger did not have any injuries on her body aside from her
hip. Id. at 99. She sustained a scratch and bruising to her face, bruising on her rear and bruising
on her arm. Id. at 100-06, Exh. C-3. Ms. Luchsinger continues to suffer pain in her neck as a
result of this incident. Id. at 106. She further testified that her hair was also forcefully pulled out
by Defendant. Id. at 107.
Between 5:00 and 6:00 p.m. the victim's niece, Colleen Stasinchak, called the residence
to ask if she needed any groceries. Id. at 108-09, 156. Ms. Stasinchak was also Ms.
Luchsinger's power of attorney and checked in on her well-being on a weekly basis. Id. at 108,
154-55. She had witnessed Defendant yelling at her quite often since he moved back in. Id. at
167. After talking to Ms. Luchsinger, Ms. Stasinchak came to the residence, as she sensed
something was wrong. Id. at 109, 156. She described Ms. Luchsinger as being "scared to
death," repeatedly asking if Ms. Stasinchak had seen Defendant. Id. at 157. Ms. Luchsinger
began showing Ms. Stasinchak the bruises she sustained from Defendant's assault and relayed to
her specifically what happened. Id. at 157-58. Ms. Stasinchak saw the socks hanging on a bar
stool in the TV room. Id. at 158.13
13
These socks were photographed and admitted into evidence. See Exh. C-3, C-10.
Page 5 of20
Ms. Stasinchak called the police and Officer Thomas Van Winkle of the Bristol
Township Police Department ("BTPD") responded. Id. at 161, 183-84. Ms. Luchsinger testified
that at this point she was too upset to speak with him. Id. at 109, 161. Officer Van Winkle
described Ms. Luchsinger's demeanor as follows:
Very erratic, shaking to the point where I thought her arms and legs were going to
fall off. I thought she was at the point of hyper-ventilation. I actually had to sit her
down, get her under controlled breathing that we do with erratic witnesses, victims,
complainants. That was taking several minutes. I asked her to take a sip of water,
and I was still having so much trouble trying to get her to calm down.
Id. at 184. Officer Van Winkle observed a small cut on Ms. Luchsinger's face, a bruise on her
lip, and two very large bruises on her bicep and tricep. Id. at 185. The officer did not take any
pictures at this time because he was having difficulty getting information from Ms. Luchsinger.
Id. at 186. He left his name and number for her if she wished to proceed with criminal charges.
Ms. Luchsinger stayed at Ms. Stasinchak's residence the night of May 17, 2014. Id. at
110.
The next day, May 18, 2014, Ms. Luchsinger decided that she wanted to report to Officer
Van Winkle Defendant's assaultive and abusive conduct. Id. at 110, 165. She asked Ms.
Stasinchak to call police. Id. at 165, 187. Ms. Luchsinger explained that she was so nervous that
she was unable to write and, accordingly, Officer Van Winkle took her account of what
happened down on paper using her words. Id. at 110, 165, 188, 201-02. She signed the
statement and adopted it as her own. Id. at 110-11. See Exh. C-2. Ms. Stasinchak also signed
the statement attesting that she read the statement in full and the contents of which were an
accurate account of what Ms. Luchsinger told Officer Van Winkle happened. Id. at 166.
Page 6 of20
Both Ms. Stasinchak and Officer Van Winkle took photographs of Ms. Luchsinger's
injuries, as some of the areas to which injuries were sustained were private and Ms. Luchsinger
felt more comfortable with Ms. Stasinchak taking some of the photographs. Id. at 113-14, 160,
189. Ms. Stasinchak took some of these photographs (the first too pages ofExh. C-3) the night
of May 17th whereas Officer Van Winkle took the remaining photographs on May 18th. Id. at
161-63. The photographs display bruising that, in some small areas, had taken on a greenish-
yellow hue. Id. at 143-45, Exh. C-3.
Later that night Officer Van Winkle received a phone call from Ms. Stasinchak informing
him that Defendant was in the area. Id. at 193. Officer Van Winkle responded and found
Defendant towards the end of Ms. Luchsinger's street coming out of a wooded area. Id. at 194.
Officer Van Winkle checked to see if the warrant he had just filed was active and, upon receiving
confirmation that it was, he took Defendant into custody. Id. He detected a strong odor of
alcohol on Defendant's breath. Id.
On cross-examination, pursuant to her statement (Exh. C-3) Ms. Luchsinger did not
inform Officer Van Winkle that Defendant grabbed her by her throat when she entered into the
kitchen, as she was very confused and "the more time I had, I could think of everything he did."
Id. at 130, 201-02. Further, Ms. Luchsinger did not provide police with the socks until the day
before the trial, as they had remained in her residence until then. Id. at 132, 199-200. She
informed this Court that there were periods in early 2014 where she fell down a couple times
and, additionally, she had been having problems getting adjusted properly with her medication.
Id. However, she testified the medicine was not the cause of these falls and that it did not make
her dizzy. Id. at 132-33. Furthermore, she did not disclose Defendant's statement that he was
going to bum her body and place it in the woods to Officer Van Winkle or the Magisterial
Page 7 of20
District Justice at her preliminary hearing. Id. at 140, 202-03. She explained that "I ... couldn't
remember everything. When you have time to sit and think of all that happened to you, that's
when I thought about it." Id. at 150.
Ms. Luchsinger described the November 2010 incident with Defendant which
15
precipitated a PF A Order14 and criminal conviction of Simple Assault and Harassment, in
which Defendant forced Ms. Luchsinger to get up out of bed at 5:00 a.m. following a knee
replacement surgery. Id. at 115-16, 120-21. She attempted to go into the bathroom but
Defendant pushed her to the ground, near the toilet, and started stepping on her face. Id. at 116.
She sustained bruising on her face, a swollen eye, bruising and scratches on her back and injury
to her leg. Id. at 117. The PFA Order following this incident was effective from February of
2011 until February 8, 2013. Id.. at 121, Exh. C-4, C-5. After the PFA Order expired she
permitted Defendant to move back in with her because she "felt bad for him." Id. at 121-22.
Following a careful consideration of the evidence presented and a review of the
applicable caselaw and relevant jury instructions, we found Defendant guilty on all counts.
On October 28, 2014, we proceeding with Sentencing. Upon consideration of the facts
underlying Defendant's conviction, the Sentencing Guidelines, a domestic violence investigation
report, Defendant's failure to take responsibility for his actions, as well as the evidence and
argument submitted by both the defense and District Attorney, we sentenced Defendant to not
less than two (2) nor more than seven (7) years' incarceration on Stalking16 and a consecutive
period of not less than one (1) nor more than two (2) years' incarceration on Simple Assault.17
14
See Exh. CS-4, CS-5.
15
See CS-1.
16
The Sentencing Guidelines called for a sentence of not less than fifteen (15) nor more than twenty-one (21)
months' incarceration in the standard range, nine (9) months' incarceration in the mitigated range, and twenty-seven
(27) months' incarceration in the aggravated range.
17
On Simple Assault, the Sentencing Guidelines recommended a sentence of not less than three (3) nor more than
twelve (12) months' incarceration in the standard range and restorative sanctions ("RS") in the mitigated range.
Page 8 of20
On False Imprisonment, Defendant was sentenced to a two (2) year period of probation, to be
served consecutive to his parole.18 No further penalty was imposed on the remaining counts.
Defendant was given credit for time served from May 17, 2014 to the date of sentencing and was
ordered to complete a mental health and drug and alcohol evaluation and abide by any and all
treatment recommendations.
On November 7, 2014, Defendant filed post-sentence motions in the form of a Motion for
Reconsideration of Sentence, a Motion for a New Trial and/or An Arrest of Judgment, and a
Motion Seeking Leave to File Additional Post-Sentence Motions. We held a hearing on the
Motion for Reconsideration of Sentence on December 15, 2014. Following our conclusion that
Defendant failed to present any additional mitigating evidence, we denied the motion.
In terms of the remaining motions, we took them under consideration pending the filing
of the requisite Notes of Testimony from the waiver trial. After reviewing the Notes of
Testimony, we issued an Order on May 29, 2015 denying the remaining post-sentence motions.
On June 25, 2015, Defendant filed his Notice of Appeal to the Superior Court.
III. MATTERS COMPLAINED OF ON APPEAL
Pursuant to this Court's June 26, 2015 Order, in his Statement of Matters Complained of
on Appeal filed on July 1, 2015, Defendant raised the following issues, verbatim:
1) Whether the trial court erred in convicting the Appellant of simple assault and
recklessly endangering another person given that:
a. The incident between the Appellant and his mother, Geraldine
Luchsinger, was not reported to police for over sixteen (16) hours.
b. Geraldine Luchsinger changed her testimony on what happened during
the incident while testifying at trial. Specifically, she stated the
18
On False Imprisonment, the Sentencing Guidelines called for a sentence ofrestorative sanctions ("RS") to six (6)
months' incarceration in the standard range and nine (9) months' incarceration in the aggravated range.
Page 9 of20
Appellant had picked her up by the throat and threw her to the ground
and she testified that he threatened to kill her and bury her body in the
woods. Neither of these statements were made to police or testified to
at the preliminary hearing.
c. Photographs entered into evidence by the Commonwealth show a
yellowing of the bruise which was inconsistent with the injuries
occurring within one to two days.
d. Geraldine Luchsinger and Colleen Stasinchak both acknowledged that
Geraldine would get dizzy from medication and had fallen, possibly
accounting for her injuries.
e. Police failed to follow up with any investigation at the house to show
that Geraldine Luchsinger's account of what happened was true.
Specifically, they did not follow up to see if the house alarm had gone
off at 3:00 a.m., check the floor for hair which Geraldine stated was
pulled from her head, and they did not check to see if the sock placed in
her mouth had her DNA on it.
2) Whether the trial court erred in finding there was sufficient evidence to convict
the Appellant of false imprisonment in that: There was no evidence Geraldine
Luchsinger was held to the ground; prevented from getting up or prevented
from leaving the kitchen.
3) Whether the trial court erred in convicting the Appellant of stalking in that:
a. The prior incident of assault allowed in at trial occurred in 2010. He
was prohibited from contact with her for three (3) years and he has never
violated that PFA.
b. The Appellant was allowed to live in the house by his mother in October
of 2013.
c. The Appellant was never asked to leave.
d. The Appellant would prepare meals, make doctor's appointments, and
help his mother around the house.
Page 10 of20
e. The Appellant rescued his mother when she fell in the shower in March
of 2014. He pulled her from the shower and summoned help.
f. It was not until six ( 6) months after he was back in the house that this
incident occurred.
g. Convicting the Appellant of stalking for solely what occurred in the
kitchen would amount to every assault in which there is more than one
blow being a stalking.
IV. ANALYSIS
All issues on appeal constitute a challenge to the sufficiency of the evidence to support a
conviction on all counts. As such, each claim will be addressed in tum.
The standard for reviewing a challenge to the sufficiency of the evidence is well-settled:
In reviewing sufficiency of evidence claims, we must determine whether the
evidence admitted at trial, as well as all reasonable inferences drawn therefrom,
when viewed in the light most favorable to the verdict winner, are sufficient to
support all the elements of the offense. Additionally, to sustain a conviction, the
facts and circumstances which the Commonwealth must prove, must be such that
every essential element of the crime is established beyond a reasonable doubt.
Admittedly, guilt must be based on facts and conditions proved, and not on
suspicion or surmise. Entirely circumstantial evidence is sufficient so long as the
combination of the evidence links the accused to the crime beyond a reasonable
doubt. 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 fact finder
is free to believe all, part, or none of the evidence presented at trial.
Commonweallh v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011) (internal citations omitted).
Because Defendant's claims detail two (2) specific seemingly inconsistent statements
made by Ms. Luchsinger, 19 we feel it pertinent to set forth the applicable caselaw regarding the
consideration and weighing of such statements as follows:
Prior inconsistent statements, however, do not render a witness incompetent or
require that [her] testimony be disbelieved. It is true, of course, that a conviction
19
Although we feel these statements are more adequately characterized as undisclosed until the date of trial, we find
the reasoning and rationale of the following case law relevant nonetheless.
Page 11 of20
cannot properly be sustained if it be based upon testimony of a witness which is so
contradictory on the essential issues as to make the verdict obviously the result of
conjecture or guess. However, the mere fact that there are some inconsistencies is
not alone sufficient to destroy the Commonwealth's case. It is the function of the
trier of the facts, in this case the trial judge, to reconcile conflicting testimony; the
mere existence of conflicts in the testimony does not mean that he is required to
resort to speculation.
Commonwealth v. Henry, 470 A.2d 581, 858 (Pa. Super. 1983) (internal citations omitted).
a) Simple Assault
Simple Assault is defined as follows:
(a) Offense defined.-- Except as provided under Section 2702 (relating to
aggravated assault), a person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily
injury to another
18 Pa.C.S. § 2701(a)(l). Bodily injury is defined as "Impairment of physical condition or
substantial pain." 18 Pa.C.S. § 2301. Caselaw dictates that "[i]n order to obtain a conviction for
simple assault, the Commonwealth was required to demonstrate beyond a reasonable doubt that
Appellant knowingly injured the victim." Commonwealth v. Torres, 766 A.2d 342, 344 (Pa.
2001). Moreover, where resulting bodily injury is not established by the Commonwealth, "it is
sufficient to support a conviction if the Commonwealth establishes an attempt to inflict bodily
injury" and "[t]his intent may be shown by circumstances, which reasonably suggest that a
defendant intended to cause injury." Commonwealth v. Martuscelli, 54 A.3d 940, 948-49 (Pa.
Super. 2012), citing Commonwealth v. Eckrote, 12 A.3d 383, 386 (Pa. Super. 2010).
At the outset, we note that we found Ms. Luchsinger' s testimony wholly credible.
Furthermore, her testimony is corroborated by her disclosure of the incident to Ms. Stasinchak
later that same day. The fear Ms. Luchsinger experienced following the incident was evidenced
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by her demeanor on the date of the incident as witnessed and later described by Officer Van
Winkle, an experienced law enforcement officer, as uncontrollably shaking, erratic and she was
close to the point of hyper-ventilation.
The evidence submitted by the Commonwealth was sufficient to establish that Ms.
Luchsinger experienced bodily injury in the form of a scratch and bruising on her face, bruising
on her rear, bruising on her arm, and pain in her neck caused directly by Defendant's assaultive
campaign against her commencing on May 17, 2014 at approximately 3 :00 a.m. Therefore,
Defendant actually caused physical bodily injury to the victim. The fact that he continued his
assaultive behavior for approximately one (1) hour and that he had knowledge that his mother
had recently undergone major surgery indicates he was fully aware and intended to cause her
bodily injury. Further, Defendant's actions in stuffing a sock down her throat also constitute an
independent commission of simple assault, as Defendant forcefully cut off Ms. Luchsinger's
airways, which could have resulted in unconsciousness or even death.
Addressing her inconsistent statements in the form of her failure to inform Officer Van
Winkle or testify at the preliminary hearing to her trial testimony that Defendant threatened to
burn her body and place it in the woods and picked her up by the neck following her entrance to
the kitchen as a precursor to the remaining concentrated campaign to assault and terrify his own
mother, we accept her explanation that at the time of the preliminary hearing she did not
specifically remember these occurrences until her own subsequent independent reflection of the
incident. Accordingly, her testimony was not internally so inconsistent as to render a verdict
based thereon, in addition to corroborating testimony and evidence, a matter of conjecture or
guess.
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Additionally, in terms of the defense's argument to the yellowing in some of the bruises
as being inconsistent with the injuries, we note following our review of the photographs admitted
into evidence of Ms. Luchsinger's injuries (Exh. C-3), that only the very outer circumference of
a few of the bruises show yellowing. Utilizing our own common knowledge and experience
acting as the fact-finder in the instant case, and without the aid of expert testimony to the
contrary, we recognized that these photographs were taken at least fifteen (15) hours after the
incident and that every individual, oftentimes based on characteristics such as age and the
distinct pressure/trauma which caused the bruise(s), heals from bruising in a distinct and
individual manner. Moreover, the inner portion of these bruises were very dark. Furthermore,
the bruises specifically were consistent with the victim's version of events, i.e., the bruises on
her bottom were the result of her fall onto the kitchen floor following Defendant's shove and the
bruises to her arm and face and small cut on her face were the result of Defendant holding her
down and forcing the socks into her mouth. We found and do find here that Ms. Luchsinger' s
explanation of the cause of the bruises at the hands of Defendant was both credible and
believable. Further, there was a marked absence of any defense evidence to the contrary.
Further, we note in passing that the lack of evidence pertaining to the house alarm, Ms.
Luchsinger's hair or DNA evidence, although this evidence would have provided further
corroboration, is simply not dispositive of the Simple Assault conviction. Additionally, although
the socks were not initially collected and preserved as evidence, upon Ms. Stasinchak's arrival at
the residence the night of the incident she noticed the socks hanging on a barstool in the living
room area and took a photograph of them, both the socks themselves and the photograph were
admitted without objection into evidence. See Exh. C-3, C-10.
Page 14 of20
Finally, although Ms. Luchsinger did admit and Ms. Stasinchak confirmed she had some
initial difficulty with her medication, we find Ms. Luchsinger' s testimony credible that dizziness
from the medication did not cause any recent falls that would attribute any significant bruising
and that the bruising was wholly caused by Defendant's assaultive behavior towards her.
Accordingly, we found that there existed sufficient evidence to find Defendant guilty of
Simple Assault.
b) REAP
18 Pa.C.S. § 2705 provides an individual commits REAP where he/she " ... recklessly
engages in conduct which places or may place another person in danger of death or serious
bodily injury." Serious bodily injury is defined as "[b]odily injury which creates a substantial
risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ." 18 Pa.C.S. § 2301. In examining a sufficiency
of the evidence challenge pursuant to a REAP conviction, the Pennsylvania Superior Court in
Martuscelli set forth the following:
To sustain a conviction for recklessly endangering another person, 'the
Commonwealth must prove that the defendant had an actual present ability to inflict
harm and not merely the apparent ability to do so.' 'Danger, not merely the
apprehension of danger, must be created.' 'The mens rea for recklessly endangering
another person is 'a conscious disregard of a known risk of death or great bodily
harm to another person.' '
54 A.3d at 949 (internal citations omitted).
At least three (3) of Defendant's separate actions independently constitutes the offense of
REAP, including one (1) Defendant picking Ms. Luchsinger up by her neck upon her entrance
into the kitchen, two (2) Defendant shoving Ms. Luchsinger onto the floor following hip
replacement surgery and three (3) stuffing socks into Ms. Luchsinger's mouth to the point of
Page 15 of20
which she felt she was unable to breathe. Each of these incidents, based in part on her recent hip
surgery, had the potential to cause serious bodily injury in the form of a protracted loss or
impairment of Ms. Luchsinger's hip or her ability to property breathe, which could have
foreseeably resulted in a loss of consciousness or death.
In response to the defense's more specific arguments made in terms of the sufficiency of
the evidence claims for both Simple Assault and REAP pertaining to Ms. Luchsinger's
inconsistent statements, yellowing of some of her bruises, dizziness sometimes caused by
medication, and the police officer's failure to collect certain evidence, for the sake of brevity we
rely on our statements set forth above as they relate to the Simple Assault conviction by
extension.
c) False Imprisonment
Pursuant to 18 Pa.C.S. § 2903(a), an individual commits False Imprisonment if: "he
knowingly restrains another unlawfully so as to interfere substantially with his liberty." In
examining a sufficiency of the evidence claim in relation to a False Imprisonment conviction, the
Pennsylvania Superior Court has set forth as follows:
In determining the magnitude of restraint necessary for false imprisonment, this
Court has recognized that false imprisonment covers restraints which are less
serious than those necessary for the offenses of kidnapping and unlawful restraint.
In determining whether the restraint at issue interfered with D.M.'s liberty
"substantially," we give the word "substantially" its plain meaning. 1 Pa.C.S.A. §
1903 (words in a statute are to be construed according to rules of grammar and
according to their common and approved usage). Thus, we determine the
Legislature intended false imprisonment to cover restraints where an individual's
liberty is interfered with in an ample or considerable manner. See Merriam
Webster's Collegiate Dictionary 1174 (10th ed.1997).
In re M.G., 916 A.2d 1179, 1181-82 (Pa. Super. 2007) (internal citations and footnotes omitted).
Page 16 of20
The Superior Court found sufficient evidence existed to support a conviction of False
Imprisonment in In re M.G., wherein Defendant snuck into the victim's bedroom, concealed
himself behind the door while the victim was in the shower, and, once the victim reentered her
room in a towel, Defendant shut and locked the door. 916 A.2d at 1182. Defendant then moved
towards the victim, she attempted to resist by pushing him and Defendant began to assault her.
Id. The Court reasoned that Defendant's actions were "ample enough to qualify as being a
'substantial interference'" with the victim's liberty because he stood between her and the door.
Id. In making this determination, the Superior Court relied on its holding in Commonwealth v.
Prince, 719 A.2d 1086 (Pa. Super. 1998), wherein the Court found that the Commonwealth
presented sufficient evidence to support a conviction of Unlawful Restraint (in which the
restriction of liberty must be more substantial than that of False Imprisonment). Id. In Prince,
the Superior Court accurately summarized that the evidence was sufficient "where the victim lay
near the appellant all night out of fear for her safety." Id. See Prince, 719 A.2d at 1087-89.
In the case sub judice, the factual circumstances are similar to that in Jn re M.G., in that
Defendant forcefully shoved Ms. Luchsinger to the ground and continually verbally shouted at
her as well as physically assaulted her while she was lying on the floor. The caselaw dictates
that although Defendant was not physically holding her down the entire exchange preventing her
escape, the crime of False Imprisonment encompasses such a psychological feeling or
disposition of having one's freedom of movement restricted that, in this case, was triggered by
present physical violence, a history of physical violence and otherwise threatening behavior, as
well as Ms. Luchsinger's inability to adequately get away quick enough based on her recent
surgery and resulting pain from her fall to the kitchen floor at Defendant's hands.
Page 17 of20
Accordingly, the Commonwealth presented sufficient evidence to support Defendant's
False Imprisonment conviction.
d) Stalking
18 Pa.C.S. § 2709.1 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
18 Pa.C.S. § 2709.l(a)(l) (emphasis added). "Course of conduct" is defined by statute as
A pattern of actions composed of more than one act over a period of time, however
short, evidencing a continuity of conduct. The term includes lewd, lascivious,
threatening or obscene words, language, drawings, caricatures or actions, either in
person or anonymously. Acts indicating a course of conduct which occur in more
than one jurisdiction may be used by any other jurisdiction inwhich an act occurred
as evidence of a continuing pattern of conduct or a course of conduct.
18 Pa.C.S. § 2709.l(f). Furthermore, "[c]ourse of conduct by its very nature requires a showing
of a repetitive pattern of behavior." Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super.
1995). In Commonwealth v. Leach it was established that"[ c]ourse of conduct is established by
proof of two related but separate events." 729 A.2d 608, 611 (Pa. Super. 1999).
In Urrutia, the Superior Court found sufficient evidence was submitted by the
Commonwealth to prove Stalking beyond a reasonable doubt where the victim, following the end
of a consensual romantic relationship, was forced to seek a PFA Order following Defendant's
continued harassment and his later conduct in coming to the victim's residence and exhibiting
violent behavior on two (2) separate occasions. 653 A.2d at 707-10.
Page 18 of20
In finding Defendant guilty of Stalking, we considered Defendant's conduct underlying
the instant Simple Assault, REAP and False Imprisonment convictions coupled with his prior
acts20 precipitating the 2010 PFA Order and 2010 conviction of Simple Assault relating to
abusive conduct against Ms. Luchsinger to constitute a course of conduct supportive of a
Stalking conviction. Furthermore, such conduct has undoubtedly resulted in both bodily injury
and severe emotional distress to Ms. Luchsinger, which was evident to this Court during her time
testifying.
Although Defendant did abide by the no contact provisions relating to his 2010
conviction and 2010 PFA Order, we find that his behavior demonstrates that, despite Ms.
Luchsinger' s resort to the civil and criminal justice system in response to his abusive behavior,
Defendant continually makes attempts to enter back into her life and, in doing so, he relentlessly
exhibited predatory behavior which the Stalking statute was enacted to eviscerate.
Pursuant to established legal standards and, particularly, the General Assembly's clear
definition of course of conduct, the fact that the victim let Defendant back into her life following
his continuous abuse and prior PFA Order, criminal conviction, and no contact orders resulting
therefrom, does not change the fact that Defendant's abusive acts against his mother were
committed over an indeterminable period of time and this does not in and of itself prevent a
conviction of Stalking. 21
We also disagree with the defense's seemingly "slippery slope" contention, i.e. that a
stalking conviction in this case indicates that "every assault in which there is more than one blow
[would constitute] a stalking." See "Statement of Matters Complained Of On Appeal," 7/15/15,
20
These prior acts were admissible to show a "course of conduct," an essential element of Stalking. See
Commonwealth v. UnuLia, 653 A.2d 706, 709 (Pa. Super. 1995).
21
We were unable to find caselaw relating to similar factual circumstances in which an abuser, following expiration
of a no contact order, is voluntarily let back in by his/her abused and, thereafter, continues a campaign of abuse.
Page 19 of20
,r 3(g). To the contrary, the instant case involves a continued campaign to abuse Ms. Luchsinger
over a period of time and is not limited to a sole incident.
Finally, while we agree with the defense that Defendant did provide a certain amount of
aid while living in Ms. Luchsinger's residence, this does not negate nor change the fact that he
committed an assault on her during the early morning hours of May 17, 2014 and this assault was
just one incident in a lengthy period of Ms. Luchsinger's abuse at the hands of Defendant.
Accordingly, Defendant's claims are without merit and the Commonwealth presented
sufficient evidence to satisfy each and every element of Stalking beyond a reasonable doubt.
I. CONCLUSION
The foregoing represents this Court's opinion regarding Defendant's appeal from his
conviction and judgment of sentence.
BY THE COURT:
Page 20 of20
COMMONWEAL TH OF PENNSYLVANIA VS. KENNETH LUCHSINGER
NO. CP-09-CR-0003747-2014
Copies sent to:
Joseph S. Haag, Chief Deputy Public Defender
Office of the Public Defender
BUCKS COUNTY JUSTICE CENTER
100 North Main Street, 1st Floor
Doylestown, PA 18901
Attorney for Appellant
Kate Kohler, ADA
Office of the District Attorney
BUCKS COUNTY JUSTICE CENTER
100 North Main Street, 2nd Floor
Doylestown, PA 18901
Attorney for Appellee/Commonwealtb
Kelly Neff, (via email only)
LAW REPORTER
Barbara A. Morris,
Law Library
PROOF OF SERVICE
I hereby certify that I served this day the foregoing
documents upon the persons and in the manner indicated below, which
service satisfies the requirements of Pa. R.A.P. 121:
Service in person
as follows:
Hon. Albert J. Cepparulo
(215) 340-8875
Judge's Chambers
Bucks County Justice Center
Doylestown, PA 18901
Kate Kohler
Assistant District Attorney
(215) 348-6344
District Attorney's Office
Bucks County Justice Center
Doylestown, PA 18901
Attorney for Appellee
DATED: /,µ~ BY: ~d~
Josiji/H.HAAG.
CHIEF DEPUTY PUBLIC DEFENDER
ATTORNEY ID #59517
PUBLIC DEFENDER'S OFFICE
BUCKS COUNTY JUSTICE CENTER
DOYLESTOWN, PA 18901
(215) 348-6473
EMAIL: slspickler@buckscoun ty. org
ATTORNEY FOR APPELLANT