Com. v. Kelly, A.

J-S57035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ANDREW JOSEPH KELLY, : : Appellant : No. 988 EDA 2017

Appeal from the Judgment of Sentence February 22, 2017 in the Court of Common Pleas of Montgomery County, Criminal Division, No(s): CP-46-CR-0005040-2016; CP-46-CR-0005878-2016

BEFORE: PANELLA, SOLANO and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 27, 2017

Andrew Joseph Kelly (“Kelly”) appeals from the judgment of sentence imposed following his conviction of two counts of harassment.1 We affirm.

The trial court thoroughly set forth the factual and procedural history underlying this appeal in its Opinion, which we adopt as though fully set forth herein. See Trial Court Opinion, 5/10/17, at 1-12.

On appeal, Kelly presents the following issue for our review:

Was the evidence insufficient to make out the necessary elements of the crime of harassment, where the evidence did not establish that [Kelly] engaged in any of the behaviors proscribed by 18 Pa.C.S.[A.] § 2709 after February 25, 2016[, i.e., the date on which the Commonwealth filed the harassment charges,] and where the evidence did not establish that he engaged in any conduct with the intent to harass, annoy or alarm the complainant[?]

Brief for Appellant at 4. 1 See 18 Pa.C.S.A. § 2709(a)(3), (7).

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We apply the following standard of review when considering a challenge to the sufficiency of the evidence:

The standard we apply … 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 need 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. … Finally, the finder 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted).

The Crimes Code defines the offense of harassment, in pertinent part, as follows:

(a) Offense defined.— A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:

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(3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose;

(4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures;

(5) communicates repeatedly in an anonymous manner;

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(6) communicates repeatedly at extremely inconvenient hours; or

(7) communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6).

18 Pa.C.S.A. § 2709(a). A “course of conduct” is defined as, inter alia, “[a] pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct.” Id. § 2709(f). “An intent to harass may be inferred from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013). “This Court has held that ‘with intent to harass,’ in phone-call related cases, requires a determination of whether the caller knew or should have known that the effect of the call would be to harass the listener.” Commonwealth v. Duda, 831 A.2d 728, 731 (Pa. Super. 2003) (citing Commonwealth v. Hart, 559 A.2d 584, 587 (Pa. Super. 1989)).

Kelly summarizes his challenge to the sufficiency of the evidence supporting his harassment convictions as follows:

Whatever may be said about [Kelly’s] conduct prior to February 25, 2016, the evidence failed to establish that … Kelly criminally harassed Pastor [Kelly] Legg [(“Pastor Legg”)] after that date. There was only one direct communication between [] Kelly and Pastor Legg after February 26, 2016.[2] This sole interaction did

2 Specifically, Kelly asserts that when he placed a telephone call to the church’s “business line” on May 28, 2016, “Pastor Legg decided to take the call, rather than the church secretary. When [Pastor Legg] told [Kelly] not to call the church, [Kelly] told her that ‘there would be consequences’ if he was not a member of the church [(hereinafter, the “consequences remark”)]. N.T. 1/10/17 at 99.” Brief for Appellant at 16 (footnote omitted).

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not commence with an attempt by [Kelly] to contact [Pastor Legg] directly. That single telephone call certainly did not establish that [Kelly] communicated to or about Pastor Legg repeatedly, at extremely inconvenient hours, without a legitimate purpose and with the specific intent to harass, annoy or alarm her.

Brief for Appellant at 15 (emphasis in original, footnote in original omitted, footnote added). According to Kelly, his consequences remark to Pastor Legg

simply indicated [Kelly’s] intent to protest his exclusion [from the church,] and did not constitute a course of conduct or a pattern of actions intended to harass, threaten or annoy. Compare Commonwealth v. Battaglia, 725 A.2d 192, 194 (Pa. Super. 1999) (“a single act will not support a conviction”).

Brief for Appellant at 19-20.

In its Opinion, the trial court concisely addressed Kelly’s claim and determined that there was ample evidence to support the harassment convictions. See Trial Court Opinion, 5/10/17, at 18-19. We agree with the trial court’s sound analysis and determination, and therefore affirm on this basis in rejecting Kelly’s sufficiency challenge, see id., with the following addendum.

Kelly’s reliance on Commonwealth v. Bender, 375 A.2d 354 (Pa. Super. 1977) (en banc), is unavailing. The non-harassing conduct presented in Bender is not remotely analogous to Kelly’s conduct in the instant case. See id. at 358-60 (concluding that the evidence was insufficient to sustain defendant’s harassment conviction under 18 Pa.C.S.A. § 2709(a)(3), where the Commonwealth failed to establish that defendant’s conduct (wherein he

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filed several formal complaints against police officers who had denied his application for a handgun permit): (1) served no legitimate purpose; (2) alarmed or seriously annoyed the complaining police officers; or (3) evidenced an intent by defendant to harass, annoy or alarm).

Moreover, we reject Kelly’s contention that the Commonwealth failed to establish that he had engaged in a “course of conduct” to sustain a conviction of harassment under 18 Pa.C.S.A. § 2709(a)(3). Kelly overlooks the fact that, in addition to the telephone call that he placed to the church on May 28, 2016, the Commonwealth presented evidence of numerous other harassing communications that Kelly made to Pastor Legg prior to the filing of the instant charges.3 The Commonwealth presented ample evidence to establish that Kelly engaged in a course of conduct of making harassing communications to Pastor Legg that served no legitimate purpose. See 18 Pa.C.S.A. § 2709(a)(3); accord Duda, 831 A.2d at 731 (where the defendant had made several phone calls to his estranged wife in a single day, wherein he screamed obscenities and threatened her, holding that “[e]ven though the period was of relatively short duration, under the [statutory] definition, [defendant’s] repeated calls were sufficient to prove a course of conduct.”).

3 Kelly did not challenge the introduction of this “prior bad act” evidence, which the trial court admitted under Pennsylvania Rule of Evidence 404(b). See Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (discussing the purposes for which Rule 404(b) evidence may properly be admitted).

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Accordingly, Kelly’s sole issue on appeal lacks merit, and we thus affirm his judgment of sentence.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/27/2017

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