Com. v. Flexer, S.

J-S42019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANE FLEXER :
:
Appellant : No. 7 EDA 2020
Appeal from the Judgment of Sentence Entered October 3, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0001533-2019
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JANUARY 14, 2021
Appellant, Shane Flexer, appeals from the judgment of sentence entered
on October 3, 2019 in the Criminal Division of the Court of Common Pleas of
Lehigh County, as made final by the denial of post-sentence motions on
November 25, 2019. We affirm.
The trial court aptly summarized the facts and procedural history in this
case as follows.
[P.C.], the victim, was friends with [Appellant] for several years
and invited him to live in her basement while she attempted to
take care of him in 2012. [P.C.] was a wood carver by trade and
helped teach [Appellant] some of the craft. At some point they
shared an intimate romantic relationship. However, [P.C.] began
to feel uncomfortable with the relationship, believed that
[Appellant] was becoming increasingly abusive, and she
attempted to dislodge him in 2015. For several months prior to
[Appellant’s] departure, [P.C.] had told [Appellant] that the
relationship was over. [Appellant] remained in the home as he
attempted to get back on his feet. [P.C.] moved on and began a
new relationship.
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Around September of 2015, [Appellant] finally left the house after
[P.C.’s] brother convinced [Appellant] that he had to leave.
[Appellant] moved to a nearby boarding house in [P.C.’s]
neighborhood and walked by her home frequently. Although
[P.C.] expressed a desire for no further contact, she was not free
of [Appellant] until he moved to Georgia around 2017. [P.C.]
expressed a desire for no contact directly with [Appellant] many
times. Nevertheless, [Appellant] continued in his attempts to
contact [P.C.]. At this point, [P.C.] ignored [Appellant’s] attempts
at contact by not responding.
In December of 2018, [Appellant’s] attempts to contact [P.C.]
escalated. [P.C.] received [electronic mail messages], repeated
[tele]phone calls, and a letter from [Appellant]. [P.C.] wrote
“rejected” on the letter and sent it back to [Appellant].
[Appellant] resent the letter and, in essence, informed [P.C.] that
he refused to be rejected. [Appellant] called [P.C.] over 80 times
in the month of December [2018]. [P.C.] responded by going to
the police. A January 3, 2019 report verifies that law enforcement
was notified and [Appellant] was put on notice he should stop
contacting [P.C.].
Nevertheless, [Appellant] continued his messages from December
of 2018 through March of 2019. [P.C.] did not respond, other
than to reject the messages, until she answered a [telephone] call
and specifically informed [Appellant] to “stop calling.” [P.C.] cut
off further communication to her house by having her service
provider block further calls, and personally blocked [Appellant] on
her [cellular telephone]. [Appellant] was not arrested at the time
and remained in Georgia. [Appellant] continued contact
regardless, and [P.C.] received voicemails, videos, and [electronic
mail messages] in January and February [of 2019]. Between
December of [2018] and April of 2019, [Appellant] called the
victim over 250 times. In addition to the hundreds of [telephone]
calls between December and April, [Appellant] sent the victim
multiple [electronic mail messages]. In a QuickTime video
attached to [electronic messages], sent approximately three times
on January 26, 2019, [Appellant] repeatedly says “I like you.”
In early March of 2019, [Appellant] attempted in-person contact.
[P.C] was attending a craft show and set up as a vendor for three
days in Richmond, Virginia. [Appellant] left his home in Georgia
to track his victim down. On the second day, after the show[,]
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the victim walked to her car and was confronted by [Appellant].
[P.C.] screamed at [Appellant] and told him to leave her alone and
stay away. [P.C.] asked a passing man for help, was able to get
in her car, and left. Again, the incident was reported to the police.
She obtained a temporary Protect[ion] from Abuse Order [“PFA”]
before she left Virginia.
On April 3, 2019, [Appellant], again, left his residence in Georgia
and drove approximately 14 hours to surprise [P.C.] at her
residence [in] Upper Milford Township, Lehigh County,
Pennsylvania. [P.C.] found [Appellant] waiting outside her front
door. [P.C.] became scared, locked the door, and called [the]
police. [P.C.] testified that she hid in the basement, grabbed a
nearby can of bug spray, and stayed on the [tele]phone until the
[s]tate [t]roopers arrived.
Pennsylvania State Trooper Mirzet Sadikovic was the first
responder and was joined shortly by Trooper Jackson.[1] Trooper
Sadikovic instructed [Appellant] that [P.C.] wanted him to leave.
[Appellant] insisted that he hear it from [P.C.] and relayed that
once he did he would leave. When [P.C.] came out, in the
presence of the [t]roopers, [Appellant] began asking [P.C.]
strange questions to the effect of “do you know I like you, do you
like me, do you know how much I like you.” In response, [P.C.]
told [Appellant] she did not like him anymore and to leave her
alone.
After witnessing the interaction between [Appellant] and [P.C.],
Trooper Sadikovic grasped the seriousness of the situation.
Trooper Sadikovic told [Appellant] to leave immediately and
escorted [P.C.] to obtain a [PFA]. Trooper Sadikovic instructed
[P.C.] to follow him to the on-call Magisterial District Judge.
Trooper Jackson stayed on scene in case [Appellant] came back
or tried to enter the home. On the way to the [MDJ’s] office,
Trooper Sadikovic noticed [Appellant’s] van parked by the side of
the road. [Appellant] left his parked position and began to follow
[P.C.’s] vehicle. In response, Trooper Sadikovic pulled over into
a church parking lot in case there was some type of bizarre
coincidence. However, [Appellant] continued to follow [P.C.] into
the empty parking lot. Trooper Sadikovic quickly motioned for
____________________________________________
1 Trooper Jackson’s first name does not appear in the transcript of Appellant’s
trial.
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[P.C.] to leave so that he [could] position his cruiser safely behind
her. When [P.C.] left the lot, [Appellant] continued to follow them.
Trooper Sadikovic radioed for backup and Trooper Jackson and
Trooper David Angstadt responded. [The t]roopers created a
blockade at a stoplight at Chestnut and Buckeye Road and
detained [Appellant]. A dashcam video of Trooper Jackson’s
motor vehicle recording (MVR) of the incident was played for the
[trial court]. When [Appellant] was asked why he was following
the victim after he was told to leave and threatened with arrest,
he responded that he knew he shouldn’t [persist] but he was
following his heart[.]
Trial Court Opinion, 11/25/19, at 3-6 (original footnotes and record citations
omitted).
Based on the foregoing facts, Appellant was charged on May 28, 2019
with a misdemeanor offense of stalking (18 Pa.C.S.A. § 2709.1(A)(1)) and a
summary offense of harassment (18 Pa.C.S.A. § 2709(A)(3)). After a record
colloquy, Appellant elected to proceed pro se and the court appointed standby
counsel. After an extension, the court convened trial on October 3, 2019 and
found Appellant guilty of both charges. That same day, the court sentenced
Appellant to 18 to 36 months’ imprisonment followed by two years of
probation. The trial court appointed counsel for purposes of post-trial
litigation and appeal. On October 11, 2019, Appellant filed a timely
post-sentence motion challenging the sufficiency and weight of the evidence
offered in support of his stalking conviction. By order and opinion, the court
denied Appellant’s motion on November 25, 2019.
Appellant filed a notice of appeal on December 17, 2019. Thereafter,
Appellant, on January 27, 2020, filed a Pa.R.A.P. 1925(b) concise statement
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of errors complained of on appeal pursuant to order of court. On January 28,
2020, the court issued an order adopting its November 25, 2019 opinion as
its Rule 1925(a) statement of reasons in support of the judgment challenged
on appeal.
Appellant raises the following issues for our review.
Whether the evidence was sufficient to sustain [Appellant’s]
conviction[] for stalking if [Appellant] failed to have the specific
intent required by the statute?
Was the verdict against the weight of all the evidence in regards
to the proof of whether or not [Appellant] was properly proven to
have the necessary criminal intent to commit the crime of
stalking?
Appellant’s Brief at 9.
In his first issue, Appellant asserts that the Commonwealth introduced
insufficient evidence to prove that he possessed the necessary specific intent
to establish the offense of stalking. While conceding that his actions may have
been excessive or even inappropriate, Appellant maintains that the
Commonwealth failed to show, beyond a reasonable doubt, that he acted with
the intent to place P.C. in reasonable fear of bodily injury or intended to cause
her substantial emotional distress. At best, Appellant claims that the evidence
simply showed that he attempted to rekindle a romantic relationship with the
victim or reach a satisfactory conclusion of their relationship.
Our standard of review regarding the sufficiency of the evidence is as
follows:
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The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact[-]finder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment for that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth may not
preclude every possibility of innocence. 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 Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the trier
of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)
(citations omitted).
The trial court reasoned as follows in rejecting Appellant’s challenge to
the sufficiency of the evidence.
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). A person acts intentionally with respect to a
material element of an offense when it is his conscious object to
engage in conduct of that nature or to cause such a result. 18
Pa.C.S.A. § 302(b)(1).
[Appellant] contends that he never intended a specific result of
either reasonable fear of bodily injury or substantial emotional
distress. There is no dispute that [Appellant] engaged in a course
of conduct and repeatedly committed acts towards the victim. The
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issue is whether the circumstances demonstrate an intent to cause
the victim fear of bodily injury or substantial emotional distress.
It is longstanding in this Commonwealth that “because a state of
mind by its very nature is subjective, absent a declaration by the
actor himself we can only look to the conduct and the
circumstances surrounding it to determine [the] mental state
which occasioned it.” Commonwealth v. O’Searo, 352 A.2d 30(Pa. 1976).
The Commonwealth’s evidence showed that the victim ended her
relationship with [Appellant] and [Appellant] refused, and
continued to refuse, to accept this fact. It seems clear to the
[court, as factfinder,] that [Appellant] was on notice that his
conduct was causing the victim substantial emotional distress but
he chose to ignore the victim’s words and actions. The victim
wanted no contact with [Appellant]. [Appellant] did not take “no”
for an answer and was told directly by the victim to leave her
alone.
[Appellant] disregarded all reasonable requests for no contact and
escalated his conduct by following the victim. [Appellant] traveled
across state lines to surprise and harass the victim. In one
incident, the victim screamed for help at the sight of [Appellant].
These circumstances would place any reasonable person in fear or
cause them substantial emotional distress. Moreover, [the court]
find[s] it particularly concerning that [Appellant] ignored specific
police instruction to leave the scene and continued to follow both
the victim and police to “follow his heart” [despite] the threat of
arrest. The victim testified that she was scared and [Appellant]
concede[d] he was aware of this fact. Therefore [the court finds]
that the Commonwealth presented sufficient evidence of stalking.
Trial Court Opinion, 11/25/19, at 8-9.
We concur fully in the trial court’s assessment of Appellant’s sufficiency
challenge. In essence, Appellant claims that the evidence of stalking must be
insufficient because a lawful motivation could explain the actions proved at
trial. Our standard of review is clear, however, that the facts and
circumstances shown by the Commonwealth need not exclude every
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possibility of innocence. For this reason, we agree that sufficient evidence
supports Appellant’s stalking conviction and that he is not entitled to relief on
his first claim.
Appellant’s second claim asserts that, even if sufficient evidence
supported his stalking conviction, the verdict was nonetheless against the
weight of the evidence. Specifically, Appellant maintains that “a fair reading
of all of the testimony supports a finding that [Appellant] was acting in a
mistaken attempt to either rekindle a romance or to otherwise settle his
relationship with the victim in a manner that would provide both parties with
a proper piece of mind.” Appellant’s Brief at 12.
Our standard and scope of review over a claim alleging that the verdict
is contrary to the weight of the evidence is as follows.
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded when
the jury's verdict is so contrary to the evidence as to shock one's
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
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trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court's determination that
the verdict is against the weight of the evidence. One of the
least assailable reasons for granting or denying a new trial is
the lower court's conviction that the verdict was or was not
against the weight of the evidence and that a new trial should
be granted in the interest of justice.
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, [our Supreme
Court has] explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (internal
citations and quotations omitted).
After careful review and consideration of the certified record, the
submissions of the parties, and the trial court’s opinion, we are satisfied that
the court did not abuse its discretion in rejecting Appellant’s claim that his
stalking conviction was against the weight of the evidence. Because the
verdict does not shock the judicial conscious, we conclude that Appellant’s
weight claim is meritless.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2021
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