Com. v. Torres, M.

J-A20042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARIBEL OCASIO TORRES :
:
Appellant : No. 2296 EDA 2021
Appeal from the Judgment of Sentence Entered October 6, 2021
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003363-2020
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 23, 2022
Maribel Ocasio Torres (Torres) appeals from the judgment of sentence
imposed by the Court of Common Pleas of Lehigh County (trial court) after
her bench conviction of two counts of harassment, 18 Pa.C.S. § 2907(a)(1).
She challenges the sufficiency of the evidence to sustain the conviction. We
affirm.
We take the factual background and procedural history of this matter
from the trial court’s January 26, 2022 opinion and our independent review of
the record.
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* Retired Senior Judge assigned to the Superior Court.
J-A20042-22
I.
A.
As the result of a May 7, 2020 incident involving Rebecca Rhyne
(Rebecca) and Kaitlyn Rhyne (Kaitlyn), the Commonwealth filed an
Information against Torres charging her with, inter alia,1 two counts of
summary harassment.2 At the bench trial, Officer Christopher D’Andrea of the
Slatington Police Department, Rebecca, Kaitlyn and Torres testified.
1.
Officer D’Andrea testified that he was dispatched to 348 Chestnut Street
for a report of a disturbance. Upon arriving at the scene and exiting his
vehicle, he observed a female, later identified as Rebecca, on the ground, and
two females inside of a detached garage at the location “going back and forth.”
(N.T. Trial, 8/04/21, at 8). Rebecca and two other males on the scene (later
identified as Torres’s adult sons) were yelling at each other. He identified a
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1 The Information also charged Torres with simple assault, but the
Commonwealth dropped the charges before trial. (See Amended Information,
8/04/21).
2 Section 2709 of the Crimes Code provides, in pertinent part: “A person
commits the crime of harassment when, with intent to harass, annoy or alarm
another, the person … strikes, shoves, kicks or otherwise subjects the other
person to physical contact, or attempts or threatens to do the same[.]” 18
Pa.C.S. § 2709(a)(1). “An intent to harass may be inferred from the totality
of the circumstances.” Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa.
Super. 2002) (citation omitted). “[A] mere conflict of testimony does not
render the verdict insufficient.” Commonwealth v. Evans, 445 A.2d 1255,
1257 (Pa. Super. 1982) (citation omitted).
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female near Rebecca as her daughter, Kaitlyn, whose three-year-old son was
with her.
Officer D’Andrea testified that he observed lacerations and redness on
Rebecca’s face. Rebecca complained of pain so the officer radioed for
emergency medical assistance. He observed that her daughter Kaitlyn was
shaking, but did not appear to have any physical injury.
When the officer separated the individuals and spoke with them, he
learned that Rebecca was the property manager for the owner of the property,
Chris Talmadge (Talmadge), and was there to clean out the garage at
Talmadge’s direction, and that Torres was the tenant of the residence but not
of the detached garage. He testified that Torres was “very angry” and
admitted striking Rebecca, whom she initially denied knowing, before later
conceding that she did, in fact, know her.
Rebecca was transported to the hospital by ambulance. Kaitlyn went to
the hospital later for an evaluation.
2.
Rebecca testified that she helped manage the 348 Chestnut Street
property on behalf of Talmadge. Her responsibilities included posting notices,
picking up rent payments and cleaning up the premises.
She testified that she and Torres had shared an acrimonious exchange
when she went to the property to collect rent in April 2020. On the day of the
incident, she testified that she had gone to the location to clean out the
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detached garage and her father, her daughter Kaitlyn and Kaitlyn’s three-
year-old son accompanied her.
While she was working in the garage, Torres entered and asked her why
she was there. She testified that when she told Torres that she was there to
clean out the garage on behalf of Talmadge, Torres responded that Talmadge
had not told her. When she called Talmadge on speaker phone for
clarification, Rebecca testified that Torres’s adult sons approached the garage
and spoke with Talmadge. Torres left the garage and was outside yelling.
Talmadge instructed Rebecca to leave and when she tried to do so, Torres’s
sons grabbed her arms and Torres punched her in the side of the face and she
fell to the ground. She testified that Torres’s sons turned their attention to
Kaitlyn, who was approximately ten or fifteen yards away, and repeatedly
yelled at Kaitlyn and her father to leave.
3.
Kaitlyn testified that Torres tried to hit her in the face with a closed fist,
but only knocked off her glasses. (See id. at 59). She maintained that
Torres’s swing connected with her three-year-old son, resulting in a black and
blue mark for at least a week. (See id.). The court did not find Kaitlyn’s
testimony about Torres striking her son to be credible, noting that no charges
had been filed related to the child. (See Trial Court Opinion, 1/26/22, at 10).
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4.
Torres testified that she had a verbal agreement with Talmadge
regarding the garage and she believed the garage was hers. When she saw
Rebecca’s family, she told them, “you guys got to get the F out. You cannot
be here.” (Id. at 34). When Rebecca did not leave, she testified that she
went back into the house and got her sons, and she and the two men returned
to the garage to confront Rebecca and her family, which escalated from talking
to yelling. Torres denied hitting Rebecca, stating that she only pushed her
out the door. On cross-examination, Torres admitted having had physical
contact with Rebecca, but testified that it was a tap on the shoulder to guide
her to the door.
She testified that her sons only interacted with Rebecca because they
were trying to help her off the ground. However, the Commonwealth
impeached her with a recording of her interview with Detective Wagner of the
Slatington Police Department in which she stated that her sons said, “Yo, I’m
about to just trash this bitch (Rebecca Rhyne),” and she responded, “No, don’t
do it … I’ll take care of it. They’re females.” (Id. at 112).
Torres initially testified that she did not have any physical contact with
Kaitlyn. However, on cross-examination, she admitted she, in fact did, but
that it was more like a tap, and that it was “not in a serious way[.]” (Id. at
104). When asked if she tried to make contact with Kaitlyn, Torres responded,
“Not tried, but if she’s there swinging, what am I supposed to do, just stay
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hit[?] I’m not Jesus. I can’t give them my right cheek. It’s wrong.” (Id. at
106). In response to the Commonwealth’s question, “At some point, your
body makes physical contact with Kaitlyn’s[?]” she again stated, “Not in a
serious way, no. It was a just a regular tap like this (indicating).” (Id. at
107).
The trial court found that Torres’s testimony about her interaction with
Kaitlyn was not credible. (See Trial Ct. Op., at 10).
B.
The trial court convicted Torres of the two summary harassment counts
and sentenced her to three months’ probation and $300.00 in fines and costs,
plus certain drug and alcohol conditions.3 Torres filed a timely post-sentence
motion, which the trial court granted in part by amending the special condition
that she obtain a drug and alcohol evaluation. All other aspects of the
judgment of sentence remained in full force and effect. Torres timely appealed
from the amended judgment of sentence4 and filed a court-ordered statement
of errors on appeal. See Pa.R.A.P. 1925(b).
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3 Torres completed her sentence on December 24, 2021 without any
violations. (See Trial Court Opinion, 11).
4Where the trial court amends the judgment of sentence during the period it
maintains jurisdiction, the direct appeal lies from the amended judgment of
sentence. See Commonwealth v. Garzone, 993 A.2d 1245, 1254 n.6 (Pa.
Super. 2010), affirmed, 34 A.3d 67 (Pa. 2012).
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II.
Torres raises one issue for our review, “[w]hether the trial evidence
sufficed to support a conviction for Harassment under 18 Pa.C.S.A.
§ 2709(a)(1)?” (Torres’s Brief, at 4).5 She argues that the evidence was
insufficient because the testimony of Rebecca and Kaitlyn was “unbelievable
and contradictory.” (Id. at 8). Specifically, she maintains that because the
court found Rebecca and Kaitlyn not credible and conflicted with her testimony
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5 Our standard of review is well-settled:
A claim challenging the sufficiency of the evidence is a
question 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 a
reasonable doubt.... When reviewing a sufficiency 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.
Commonwealth v. Johnson, 910 A.2d 60, 65 (Pa. Super. 2006), appeal
denied, 923 A.2d 1173 (Pa. 2007) (citation omitted). Torres’s issue
challenges the weight of the evidence, not its sufficiency. See
Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003)
(explaining sufficiency of evidence review does not include assessment of
credibility, which is more properly characterized as challenge to weight of
evidence). “[A] sufficiency of the evidence challenge is directed to the
adequacy of the evidence as to the elements of the offenses of which a
defendant has been convicted.” Johnson, supra at 65. On review of a trial
court’s ruling as to a weight of evidence claim, this Court may only determine
whether the trial court abused its discretion, “not the underlying question of
whether the verdict is against the weight of the evidence.” Commonwealth
v. Smith, 985 A.2d 886, 888 (Pa. 2009). An abuse of discretion is found
where “the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.” Id.-7-
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that any physical contact was only in self-defense, the evidence was
insufficient. However, that was not what the trial court found.
Regarding her claim that the evidence was insufficient to prove
harassment of Kaitlyn because her testimony was found not credible, the trial
court found that:
Kaitlyn Rhyne’s testimony that [Torres] struck her three-
year-old son was not credible. …
By the same token, [Torres]’s testimony was not credible
either. [Torres] expressly denied having any physical contact with
Kaitlyn Rhyne. Moments later, she admitted that she did have
physical contact with Kaitlyn Rhyne, although she downplayed it.
Based on an evaluation of the testimony and considering the
relative credibility of the witnesses, the [c]ourt determined that
there was sufficient evidence that [Torres] subjected Kaitlyn
Rhyne to physical contact, albeit minor physical contact based on
the evidence and testimony, and that she did so with intent to
harass, annoy or alarm her. [Torres] expressed that she is “not
Jesus” and that if someone is swinging at her, she is not going to
stand there and get hit. The consistent element between Kaitlyn
Rhyne’s testimony and [Torres]’s is that during the course of the
altercation between them, [Torres] came into physical contact
with Kaitlyn Rhyne, and the evidence supported the conclusion
that it was intentional. As a result, the evidence was sufficient to
sustain a conviction of Harassment with respect to Kaitlyn Rhyne.
(Trial Court Opinion, 1/26/22, at 10). While it found that Kaitlyn’s testimony
about Torres striking her son was not credible, the trial court did find her
testimony that Torres attempted to strike her in the face and instead struck
her glasses credible. Conversely, the court found all of Torres’s testimony
about events with Kaitlyn to be incredible due to its contradictory nature.
The trial court also found credible Rebecca’s testimony that Torres and
her family approached her and her family screaming obscenities, and when
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Rebecca and Kaitlyn attempted to leave, Torres’s adult sons grabbed
Rebecca’s arms and Torres punched her. (See N.T. Trial, at 32-33, 36).
Torres then had physical contact with Kaitlyn, attempting to hit her in the face
with a closed fist and knocking off her glasses. (See id. at 59).
We discern no abuse of discretion or error of law. “[I]t is within the
province of the fact finder to determine the weight to be accorded each
witness’s testimony and to believe all, part, or none of the evidence introduced
at trial.” Johnson, supra at 65 (citation and brackets omitted). Given its
credibility findings, the trial court did not abuse its discretion or commit an
error of law in concluding there was sufficient evidence to establish that Torres
subjected Kaitlyn to physical contact with the intent to harass, annoy or alarm
her. See Johnson, supra at 65; 18 Pa.C.S. § 2709(a)(1). The sufficiency
of the evidence argument would lack merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2022
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