Com. v. Roatche, R.

J-S32024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD P. ROATCHE :
:
Appellant : No. 2370 EDA 2019
Appeal from the Judgment of Sentence Entered July 10, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006705-2018
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: MAY 3, 2021
Appellant, Richard P. Roatche, appeals from the judgment of sentence
entered in the Montgomery County Court of Common Pleas, following his
bench trial convictions for harassment and disorderly conduct.1 We affirm.2
The relevant facts and procedural history of this appeal are as follows.
At trial, the Commonwealth presented evidence that
[Appellant] had an altercation with his neighbor, Abraham
Hittle, regarding their adjoining properties. While Mr. Hittle
was on a riding mower, mowing his lawn and the lawn of a
neighboring property, [Appellant] approached and
threatened Mr. Hittle with a tomato stake. After leaving the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2709(a)(1), 5503(a)(1), respectively.
2On October 7, 2020, we stayed our disposition of this case pending this
Court’s decision in Commonwealth v. Lopez, 2021 PA Super 51 (filed March
23, 2021) (en banc). Now that this Court has issued its decision in Lopez,
we lift the stay order.
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altercation on foot and walking back to his property, Mr.
Hittle called the police to report the incident.
The area of the neighboring property being mowed by Mr.
Hittle abuts [Appellant’s] property. On the date in question,
the grass cuttings created from Mr. Hittle’s lawn mower
were being displaced onto [Appellant’s] property and into
his garden. [Appellant] indicated to Mr. Hittle that he did
not want the grass cuttings on his property, and the
altercation ensued, resulting in [Appellant] [w]ielding a
tomato stake at Mr. Hittle. There is a lengthy history of
animosity and a need for police involvement with these two
neighbors.
(Trial Court Opinion, filed 10/4/19, at 1-2) (internal record citations omitted).
The court conducted a one-day bench trial on July 10, 2019, finding
Appellant guilty of harassment and disorderly conduct. Immediately following
trial, the court sentenced Appellant to ninety (90) days’ probation for
harassment, plus a consecutive term of ninety (90) days’ probation for
disorderly conduct. The court also ordered Appellant to pay court costs and
have no contact with Mr. Hittle. Following the imposition of sentence,
Appellant’s counsel asked the court to consider waiving the payment of court
costs, because Appellant’s “only source of income is retirement.” (N.T. Trial,
7/10/19, at 89). The court responded, “This is what I will do, if he doesn’t
have any problems or he doesn’t violate in the six months I will waive the
costs but not until then.” (Id. at 89-90).
Appellant did not file post-sentence motions. Instead, Appellant timely
filed a notice of appeal on August 8, 2019. On August 13, 2019, the court
ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
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complained of on appeal. After requesting an extension, which the court
granted, Appellant timely filed his Rule 1925(b) statement on September 12,
2019.
Appellant now raises two issues for our review:
Did the sentencing court err by conditioning a waiver of
supervision costs on [Appellant’s] future compliance with
conditions of probation?
Was evidence sufficient to establish that [Appellant] had the
requisite intent required to qualify a crime as harassment?
(Appellant’s Brief at viii).
In his first issue, Appellant contends that a sentencing court must
impose a “supervision fee” on a defendant who receives a probationary
sentence, unless the court determines that the defendant is unable to pay.
Appellant insists “the only factor relevant to a determination of waiver of
supervision fees is a person’s ‘present inability to pay.’” (Id. at 8) (quoting
18 P.S. § 11.1102(c)). As such, Appellant argues that the court imposed an
illegal sentence by conditioning the waiver of supervision fees on Appellant’s
future compliance with the terms of his probation.
In addition to his argument regarding the legality of his sentence,
Appellant also challenges the discretionary aspects of the sentence.
Specifically, Appellant claims his “future compliance with probation is in no
way relevant to a determination of his ability to pay supervision fees.” (Id.
at 9). Appellant maintains the court relied upon this impermissible factor in
fashioning his sentence, and the sentence could be vacated on this basis
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alone. Appellant also asserts that the court compounded its error by failing
to “provide any information regarding what the actual amount of the imposed
costs would be.” (Id.). Appellant concludes this Court must vacate his
judgment of sentence and remand the matter for resentencing. We disagree.
“A claim that implicates the fundamental legal authority of the court to
impose a particular sentence constitutes a challenge to the legality of the
sentence,” which is non-waivable where the reviewing court has jurisdiction.
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013). “If no
statutory authorization exists for a particular sentence, that sentence is illegal
and subject to correction.” Id. Generally, a claim that a court lacks authority
to impose costs constitutes a challenge to the legality of sentence.
Commonwealth v. Garzone, 993 A.2d 306 (Pa.Super. 2010), affirmed, 613
Pa. 481, 34 A.3d 67 (2012). “We review the legality of a sentence [under a]
de novo standard. Our scope of review is plenary.” Commonwealth v.
Smith, 210 A.3d 1050, 1062 (Pa.Super. 2019), appeal denied, ___ Pa. ___,
218 A.3d 1199 (2019) (internal citations omitted).
Section 11.1102(c) governs the imposition of probation supervision fees
as follows:
§ 11.1102. Costs for offender supervision programs
* * *
(c) Court.—The court shall impose as a condition of
supervision a monthly supervision fee of at least $25 on any
offender placed on probation, parole, accelerated
rehabilitative disposition, probation without verdict or
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intermediate punishment unless the court finds that the fee
should be reduced, waived or deferred based on the
offender’s present inability to pay. Of the fee collected, 50%
shall be deposited into the County Offender Supervision
Fund established in each county pursuant to this section,
and the remaining 50% shall be deposited into the State
Offender Supervision Fund established pursuant to this
section.
18 P.S. § 11.1102(c).
Additionally, a claim that a sentence is based on impermissible factors
constitutes a challenge to the discretionary aspects of sentencing.
Commonwealth v. Shugars, 895 A.2d 1270 (Pa.Super. 2006). Challenges
to the discretionary aspects of sentencing do not entitle an appellant to an
appeal as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.
2000). Prior to reaching the merits of a discretionary sentencing issue:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Instantly, the court announced the imposition of the following sentence:
Here is the sentence; count two, harassment, 90 days of
probation to date from today. Count three, disorderly
conduct, 90 days of probation running consecutive to count
two. You’re to have no contact with Abraham Hittle. You’re
to pay court costs. And unfortunately I really don’t believe
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there are any other conditions I can place upon you.
(N.T. Trial at 89) (emphasis added).3 Thereafter, Appellant’s attorney
specifically argued that court costs should be waived due to Appellant’s limited
financial resources. Appellant’s attorney did not specifically mention the
probation supervision fee. (See id. at 89-90). The court agreed to revisit the
issue of waiving court costs in six months, and counsel stated, “I will make
that note.” (Id. at 90).
Contrary to Appellant’s argument, the court did not condition the waiver
of supervision fees on Appellant’s future compliance with the terms of his
probation. Rather, the parties discussed the imposition of court costs only.
Thus, to the extent Appellant argues that the court somehow violated Section
11.1102(c), his claim is without merit. Regarding his argument that the
sentencing court relied upon impermissible factors, Appellant did not preserve
this issue at sentencing or in a motion to reconsider and modify sentence.4
____________________________________________
3 The court did not mention the payment of the probation supervision fee, and
the certified record does not include a corresponding written sentencing order.
Nevertheless, a copy of the trial court’s docket, which is attached to
Appellant’s notice of appeal, confirms that the “monthly offender supervision
fee” was part of Appellant’s sentence. See Joseph v. Glunt, 96 A.3d 365(Pa.Super. 2014), appeal denied, 627 Pa. 774, 101 A.3d 787 (2014)
(explaining that, even in absence of written sentencing order, criminal docket
and sentencing hearing transcript can be used to confirm imposition of valid
sentence).
4 Moreover, to the extent Appellant’s counsel requested the waiver of court
costs due to financial hardship at the sentencing hearing, we reiterate that
there is no requirement that a court make an ability-to-pay determination
before imposing court costs at sentencing. See Lopez, supra.
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See Evans, supra. The record also belies Appellant’s claim the court did not
provide the actual amount of the court costs, because the trial court docket
attached to the notice of appeal forwarded to this Court lists the amount of
each cost at issue. On this record, Appellant is not entitled to relief on his first
issue.
In his second issue, Appellant acknowledges the Commonwealth’s
evidence that he approached Mr. Hittle with a tomato stake and made
threatening comments. Nevertheless, Appellant insists that the
Commonwealth did not establish that he made the comments with the intent
to harass Mr. Hittle. Appellant argues that he had a long history of hostile
encounters with Mr. Hittle, and Mr. Hittle was the aggressor on many
occasions. In light of these prior encounters, including some that resulted in
criminal charges being filed against Mr. Hittle, Appellant maintains he
reasonably feared for his own safety during the instant encounter. Under
these circumstances, Appellant concludes the Commonwealth presented
insufficient evidence to support his harassment conviction. We disagree.
Our standard of review for sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the
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 the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
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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. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.
Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).
The Pennsylvania Crimes Code defines the offense of harassment, in
pertinent part, as follows:
§ 2709. Harassment
(a) Offense defined.―A person commits the crime of
harassment when, with intent to harass, annoy or alarm
another, the person:
(1) strikes, shoves, kicks or otherwise subjects
the other person to physical contact, or attempts or
threatens to do the same[.]
18 Pa.C.S.A. § 2709(a)(1).
With the enactment of 18 Pa.C.S. [§] 2709, our legislature
has sought to prohibit such conduct, including speech, which
is not Constitutionally protected and which is intended to
alarm or seriously annoy another person. The purpose of
the [legislation], undoubtedly, was to extend to the
Individual the protections which have long been afforded the
general public under disorderly conduct and breach of the
peace statutes.
Commonwealth v. Duncan, 363 A.2d 803, 807 (Pa.Super. 1976). “An
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intent to harass may be inferred from the totality of the circumstances.”
Commonwealth v. Cox, 72 A.3d 719, 721 (Pa.Super. 2013) (quoting
Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa.Super. 2002)).
Instantly, Mr. Hittle testified that he started to mow the grass, and
Appellant “proceeded to come to me with a stake and was swinging it eight or
nine times just missing my head.” (N.T. Trial at 13). Mr. Hittle explained that
Appellant swung the stake “like a baseball bat,” and “at one point he stopped
that stick right at my ear and said I will fucking kill you.” (Id. at 14-15).
Here, Appellant’s verbal threat of harm demonstrated the requisite intent to
support the harassment conviction. See Commonwealth v. Duda, 831 A.2d
728 (Pa.Super. 2003) (holding Commonwealth presented sufficient evidence
to support harassment conviction where defendant’s use of obscene language
and death threats demonstrated that his phone calls to victim were made with
intent to harass). Thus, Appellant is not entitled to relief on his second issue.
See Tucker, supra. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/21
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