J-S65007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STANLEY J. CATERBONE                       :
                                               :
                       Appellant               :   No. 1972 MDA 2018

       Appeal from the Judgment of Sentence Entered November 5, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0006520-2017


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                        FILED FEBRUARY 21, 2020

        Appellant, Stanley Caterbone, appeals from his judgment of sentence

for stalking, recklessly endangering another person (“REAP”) and simple

assault. We affirm.

        Appellant lived next door to Brunilda Ramirez and her family in adjoining

units in a duplex. Between September of 2016 and October of 2017, Ramirez

reported several incidents involving Appellant to the police. In September and

October of 2016, Ramirez called the police to report that Appellant was

repeatedly banging loudly on their shared wall late at night. Ramirez again

called the police in May of 2017, when Appellant approached her, cursed her

out and threatened to burn their shared house. Then, in June of 2017,

Appellant approached Ramirez’s granddaughter at her school bus stop on two

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*   Retired Senior Judge assigned to the Superior Court.
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occasions. When Ramirez instructed Appellant not to speak to                her

granddaughter, Appellant again cursed her out. Ramirez reported these

incidents to the police.

      Ramirez reported another incident to the police in September of 2017

after Appellant again threatened to burn their shared building down during an

argument. The following month, Ramirez’s grandson, X.M., was walking down

a narrow alleyway on his way to school when Appellant drove past X.M. at a

fast speed and caused X.M. to jump back and fall to the ground. Appellant

then followed X.M. in his vehicle until X.M. arrived at school. Once he got to

school, X.M. saw Appellant drive past the school. X.M. reported this incident

to his principal, who, in turn reported it to police.

      During this time, Appellant was also posting information regarding

Ramirez and her family on Twitter. These posts included multiple references

to the Ramirez family and the address of their house, photographs of the

house and surrounding area, and a video of Appellant following Ramirez’s

daughter, Ashley Ramirez, in their respective vehicles.

      Based on these incidents, Appellant was charged with stalking, two

counts of simple assault and REAP. At his jury trial, Appellant testified on his

own behalf. He maintained that he was not stalking the Ramirez family but

rather, the Ramirez family was stalking him. He also testified that he was

afraid of the Ramirez’s dog and that this fear was the reason behind some of

his actions. The jury convicted Appellant of stalking, one count of simple




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assault and REAP, and the trial court sentenced Appellant to an aggregate

term of probation of ten years. This appeal followed.

      Appellant first claims the evidence was insufficient to support his

conviction for stalking because the Commonwealth did not prove Appellant

had the requisite intent. This claim fails.

      “Evidence presented at trial is sufficient when, viewed in the light most

favorable to the Commonwealth as verdict winner, the evidence and all

reasonable inferences derived therefrom are sufficient to establish all

elements of the offense beyond a reasonable doubt.” Commonwealth v.

Blakeney, 946 A.2d 645, 651 (Pa. 2008) (citations omitted).                The

Commonwealth may sustain its burden entirely by circumstantial evidence and

the jury, which passes upon the weight and credibility of each witness’s

testimony, is free to believe all, part or none of the evidence. See

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). When

determining whether a defendant had the requisite intent to commit a crime,

the jury is also free to conclude that the defendant intended the natural and

probable consequences of his actions. See Commonwealth v. Holley, 945

A.2d 241, 247 (Pa. Super. 2008).

      To sustain a conviction for stalking, the Commonwealth must prove that

the defendant:

            engage[d] in a course of conduct or repeatedly
            commit[ted] 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

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            injury or to cause substantial emotional distress to
            such other person.

18 Pa.C.S.A. § 2709.1(a)(1). The statute defines “course of conduct” as “a

pattern of actions composed of more than one act over a period of time,

however short, evidencing a continuity of conduct,” and defines “emotional

distress” as “a temporary or permanent state of mental anguish.” 18 Pa.C.S.A.

§ 2709.1(f).

      In rejecting Appellant’s assertion that the Commonwealth failed to prove

the element of intent, the trial court stated:

            Appellant’s argument is clearly refuted by the facts in
            this case set forth above. Specifically, Appellant’s
            conduct – including threatening to burn the house he
            shared with the victims, following the victims in his
            vehicle, and knocking hard on the shared wall so
            loudly it awoke the victims and caused objects to fall
            off the victims’ wall – could only be intended to cause
            Ms. Ramirez and her family substantial emotional
            distress.

Trial Court Opinion, 3/25/19, at 5.

      Appellant argues, however, that the Commonwealth did not – and

essentially could not - prove that he intended to cause the Ramirez family

substantial emotional distress because he believed that the Ramirez family

was actually stalking him. According to Appellant, his actions were not

motivated by any intent to cause distress but were motivated by his perceived

fear of the Ramirez family and their dog, even if “some of [his] beliefs were

not reality-based.” Appellant’s Brief at 33. This claim fails for several reasons.




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       First, to the extent that Appellant is suggesting that his mental state

may have prevented him from forming an intent to commit the crime of

stalking, we note that Appellant did not offer any mental infirmity defense or

expert medical testimony to that effect at trial. Moreover, Appellant testified

at trial and told the jury that he believed the Ramirez family was stalking him,

that he needed to protect himself from them and their dog, and that he did

not intend to stalk or harm the family.

       The jury obviously did not believe Appellant’s testimony that he only

intended to protect himself. Instead, the jury, as it was free to do, clearly

concluded that Appellant intended the natural and probable consequences of

his actions. Those actions, which included threatening to burn the house he

shared with the Ramirez family and speeding towards a child from that family

in a narrow alleyway, would naturally, and in fact did, cause substantial

emotional distress.1 We agree with the trial court that there was more than

sufficient evidence to support Appellant’s conviction for stalking.

       Appellant also argues that the evidence was insufficient to support his

conviction for the simple assault of X.M. pursuant to 18 Pa.C.S.A. §

2701(a)(3), which provides that a person is guilty of that offense if he


____________________________________________


1 Brunilda Ramirez testified that Appellant had scared her and had scared her
granddaughter. See N.T. Trial, 8/20/18, at 144-45. She testified that the
multiple incidents with Appellant that had been going on “for over two years”
were very upsetting to her, especially because they involved her
grandchildren. Id. at 148-50. X.M. also testified that Appellant had scared
him. See id. at 108.

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“attempts by physical menace to put another in fear of imminent serious bodily

injury.” This claim also fails.

      X.M. testified at Appellant’s trial. He testified that he is eleven years-

old, that Ramirez is his grandmother, and that Appellant is his neighbor. He

further testified that on the morning of October 31, 2017, as he was walking

to school in the narrow alleyway behind his house, he heard the engine of

Appellant’s vehicle. Appellant then sped towards him. X.M. testified that he

jumped back to get out of the vehicle’s way and fell to the ground after being

hit on the elbow by the side mirror of the vehicle. X.M. also testified that a

few days before this incident, Appellant had threatened to burn their shared

house and to kill him.

      Appellant acknowledges that he recklessly endangered X.M. and could

have placed him in fear of imminent serious bodily injury by speedily driving

past him in a narrow alleyway. However, echoing the argument made in his

first claim, Appellant asserts that he never intended to place X.M. in any such

fear but rather “believed X.M. was stalking him” and that is why he “rushed

through the alleyway.” Appellant’s Brief at 37. Indeed, Appellant testified at

trial that X.M. was stalking him, that he followed X.M. only to “establish

whether he really was going to [the local elementary school]” and that he did

not intend to cause him harm. N.T. Trial, 8/21/18, at 246.

      However, as the trial court noted in rejecting this claim below, the jury

was free to discredit Appellant’s testimony about his stated intent of his




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actions. The jury was also free to believe X.M.’s testimony, which was more

than sufficient to support Appellant’s conviction for simple assault.

      Next, Appellant claims the trial court erred by precluding him from

presenting evidence that the Ramirez’s dog attacked and bit him. This claim

warrants no relief.

      A trial court’s decision regarding the admissibility of evidence will only

be reversed on appeal if the trial court abused its discretion. See

Commonwealth v. Yockey, 158 A.3d 1246, 1254 (Pa. Super. 2017). “An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality.”

Id. (citation omitted). Evidence will only be admitted at trial if it is relevant,

see Pa.R.E. 402, meaning that it “logically tends to establish a material fact

in the case or tends to support a reasonable inference regarding a material

fact.” Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002) (citation

omitted).

      Prior to trial, Appellant sought to offer evidence that the Ramirez’s dog

had previously attacked and bitten him. The proffered evidence included an

email about the dog bite and hospital discharge papers. The trial court ruled

that evidence of the dog bite was not admissible. See N.T. Trial, 8/20/18, at

15. However, the trial court explicitly told Appellant that he could testify that

he was afraid of the Ramirez’s dog. See id.




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       In rejecting Appellant’s claim that this ruling was in error, the trial court

explained that evidence of the dog bite was simply not relevant to Appellant’s

case.2 Appellant counters that the evidence of the dog bite was relevant

because it explained why he acted the way he did. However, Appellant was

allowed to testify that he was afraid of the dog. In fact, Appellant did testify

to that effect, telling the jury that his neighbors have a large pit bull and

stating several times that he was frightened of the dog and that is why he

acted in the manner that he did. See, e.g., N.T. Trial, 8/21/18, at 240, 248,

253.

       The jury obviously chose not to believe Appellant that his course of

conduct could somehow be explained by his fear of the Ramirez’s dog. We find

no abuse of discretion in the trial court’s decision to exclude evidence relating

to the dog bite itself. Even if the trial court did err, we would find the error to

be harmless. See Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014)

(stating that an error is harmless if the error did not prejudice the defendant

or the prejudice was de minimus). The evidence of the dog bite would merely

have been cumulative to Appellant’s testimony about his fear of the dog.

Appellant has not established that it would have convinced the jury that his

actions were justified by his fear of the dog.
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2 The court also found that Appellant’s email regarding the dog bite constituted
inadmissible hearsay. While Appellant disagrees, he fails to identify which of
the exceptions to the hearsay rule he believes would apply to the email, or to
any of his proffered documents. See Commonwealth v. Manivannan, 186
A.3d 472, 482 (Pa. Super. 2018) (stating that hearsay is not admissible unless
it falls within one of the exceptions to the hearsay rule).

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       Appellant also claims the trial court erred by precluding him from

explaining the mumbling that was on the video that showed him following

Ashley Ramirez in their respective vehicles. This claim also provides no basis

for relief.

       At trial, the Commonwealth played a video Appellant had recorded of

himself while he was following Ashley in her vehicle. Appellant then posted

the video on Twitter. During that video, Appellant is heard mumbling to

himself, including making a statement that he was following Ashley.

       Prior to Appellant’s testimony, trial counsel requested a ruling by the

court to allow him to ask Appellant to explain this mumbling because,

according to counsel, it was “kind of disturbing behavior.” N.T. Trial, 8/21/18,

at 231. When asked by the court what that explanation would be, Appellant

told the court that what he had mumbled on the video was a result of

“synthetic telepathy” and that, as a victim of U.S. sponsored mind control, he

was actually mouthing the words being telepathically communicated to him

by someone else. See id. at 232, 234. The trial court denied counsel’s request,

ruling that Appellant could not testify about a condition “without some medical

testimony or some expert testimony here to support this condition and that

you have it.” Id. at 234-35.

       Appellant now claims the trial court “missed the point” and that

Appellant’s belief that he had synthetic telepathy should have been admissible

to show his state of mind and that he did not intend to follow Ashley.

Appellant’s Brief at 46. In rejecting this argument below, the trial court made

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clear that Appellant’s explanation for the mumbling on the video was not

relevant to the case. As the trial court stated in its opinion, “whether Appellant

suffered from ‘synthetic telepathy’ did not make any fact of consequence in

the action more or less probable, including whether Appellant intended to

cause Ms. Ramirez and her family substantial emotional distress.” Trial Court

Opinion, 3/25/19, at 7-8. We see no abuse of discretion in this determination.

      Moreover, we would find any error on the part of the trial court to be

harmless. The evidence that Appellant stalked the Ramirez family was

overwhelming. Appellant’s following of Ashley was but one of the many actions

presented by the Commonwealth that showed Appellant engaging in a course

of conduct demonstrating an intent to cause substantial emotional distress to

the Ramirez family. In light of this overwhelming evidence of Appellant’s guilt,

any error on the part of the trial court that occurred from precluding Appellant

from testifying about his self-diagnosed synthetic telepathy would have been,

at most, harmless. See Commonwealth v. Spotz, 896 A.2d 1191, 1222 (Pa.

2006) (stating that an error is harmless if the evidence of guilt, without regard

to the tainted evidence, is so overwhelming that the conviction would have

followed beyond a reasonable doubt without regard to it).

      Next, Appellant claims the trial court erred by instructing the jury that

“there are no defenses with regard to any mental infirmity or mental health

issues that are being presented in this case, so that’s not something for you

to be concerned about any further.” N.T. Trial, 8/21/18, at 311. Again, this

claim does not offer Appellant any basis for relief.

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      The trial court has broad discretion in fashioning jury instructions. See

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006). When

reviewing a challenge to those instructions, the reviewing court must consider

the charge as a whole and determine whether the charge was inadequate,

erroneous or prejudicial. See Commonwealth v. Fletcher, 986 A.2d 759,

792 (Pa. 2009). “A new trial is required on account of an erroneous jury

instruction only if the instruction under review contained fundamental error,

misled, or confused the jury.” Id. (citation omitted).

      We see no error in the instruction Appellant challenges here. There is

no dispute that Appellant did not present a defense of insanity or mental

infirmity at trial. However, because there was concern that the jury may have

been confused by Appellant’s testimony, which Appellant admits in his brief

showed “disordered thinking,” the trial court merely clarified in its instructions

to the jury that Appellant had not introduced any defense pertaining to his

mental health and therefore the jury should not consider any such defense.

See Appellant’s Brief at 52.

      Appellant now complains that the practical effect of the court’s

instruction was to tell the jury to disregard his testimony and that they could

not “consider [Appellant’s] beliefs that he was being stalked and that he was

in danger.” Id. at 52, 54. This assertion is belied by the record.

      The trial court did not tell the jury to disregard Appellant’s testimony or

any other evidence regarding Appellant’s beliefs. In fact, the court specifically

instructed the jury that when considering Appellant’s testimony, they were to

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follow the general instructions given for judging the credibility of any witness.

See N.T. Trial, 8/21/18, at 311. To avoid any confusion that Appellant’s

testimony may have caused, however, the court instructed the jury that

Appellant had not put forth any defense related to his mental state, which is

undisputedly supported by the record. See N.T. Trial, 8/20/19, at 212

(Appellant’s trial counsel stating that he was not offering any kind of mental

infirmity defense). No relief is due.3

       In his last claim, Appellant alleges the prosecutor committed misconduct

during his closing argument and the trial court erred by denying counsel’s

request for a curative instruction in response to that misconduct. These claims

both fail.

              Comments by a prosecutor constitute reversible error
              only where their unavoidable effect is to prejudice the
              jury, forming in their minds a fixed bias and hostility
              toward the defendant such that they could not weigh
              the evidence objectively and render a fair verdict. The
              prosecution’s statements are unobjectionable if they
              are based on the evidence or proper inferences
              therefrom, or represent mere oratorical flair.

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3 Pa.R.Crim.P. 568 (“Rule 568”) requires a defendant to file a notice of intent
if he is going to offer a defense of insanity or mental infirmity or if he is going
to offer expert evidence of a mental condition. Appellant argues that the court,
through its instruction, improperly prohibited the jury from considering all
evidence related to his mental health merely because he did not file notices
of intent pursuant to Rule 568. As discussed above, the court’s instruction did
no such thing. The instruction was limited to making sure the jury understood
that it was not to consider a defense based on Appellant’s mental health
because this defense was never offered by Appellant. Appellant makes no
argument that this instruction was not accurate because he actually did file a
Rule 568 notice of, or present, such a defense.

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            Additionally, the prosecution must be permitted to
            respond to arguments made by the defense.

Commonwealth v. Tedford, 960 A.2d 1, 33 (Pa. 2008) (citations omitted).

      Appellant objects to the following comments made by the prosecutor

during his closing argument:

            Well, where are the documents of the Pit Bull
            that he is so terrified of? Where’s the
            photographs of that? Where’s the documents,
            where’s the photographs of Brunilda and Ashley
            and people waiting outside and throwing
            plywood pieces at him that he talked about?
            Where are those documents? Why didn’t he
            photograph that stuff? Because it didn’t happen.

N.T. Trial, 8/21/18, at 289. Appellant claims these comments amounted to

prosecutorial misconduct because the prosecutor questioned why there had

been no documentation of the dog when the prosecutor knew Appellant had

been precluded from presenting evidence that the dog had bitten him.

      In making his claim, Appellant fails to quote the comments by the

prosecutor which immediately preceded the comments quoted by Appellant

above. The prosecutor stated:

            [D]efense counsel mentioned how – how the
            defendant documented everything. And the defendant
            told you how he had to document everything.
            He had to take these pictures and put them on Twitter
            … because he had to document everything.

Id. The prosecutor then asked where the photographs of the dog were.

      When placed in context, it is clear the challenged comments do not

constitute reversible error. After trial counsel raised his objection to these




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comments,4 the prosecutor explained at sidebar that the comments did not

refer to anything about a dog bite or to any of the evidence Appellant was not

allowed to introduce about that dog bite. See id. at 304-05. Rather, the

prosecutor noted that Appellant had been permitted to - and did - testify about

the existence of the dog and therefore could have offered photographs of the

dog. Id.

       The prosecutor also noted that Appellant had repeatedly testified at trial

that he needed to document as much as he could to create a record of what

was happening to him. Id. Based on this testimony by Appellant, the

prosecutor argued that it was reasonable for him to question why Appellant

had not produced photographs of the dog. Id. We agree with the trial court

that the prosecutor’s comments constituted a fair response to Appellant’s

testimony and were therefore not improper. See Tedford, 960 A2d at 34

(finding that the prosecutor’s comments responding to the appellant’s

testimony were not improper).

       Appellant asserts, however, that the trial court should have at least

given a curative instruction telling the jury that the dog did exist and allowing

them to see his documents related to the dog bite. According to Appellant,

this was necessary to counteract any doubts about the dog’s existence that

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4 The trial court found that Appellant had waived this issue because counsel
did not object when the challenged comments were made but instead waited
to raise the issue until after the closing arguments were finished and the
trial court had begun its instructions. However, as the trial court found, even
if the issue is not waived, it is without merit.

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the prosecutor created by commenting on Appellant’s failure to produce

photographs of the dog.

      As   discussed   above,   the   prosecutor’s   comments   regarding   the

photographs of the dog were not improper and therefore, no curative

instruction was warranted. Moreover, the trial court instructed the jury that

Appellant had no burden to present any evidence in his defense, see N.T.

Trial, 8/21/18, at 320, and that the speeches of counsel were not evidence,

see id. at 306. We agree with the trial court that Appellant has not shown

that he was prejudiced by the trial court’s decision not to give the charge

Appellant requested about the dog. See Commonwealth v. Scott, 73 A.3d

599, 602 (Pa. Super. 2013) (stating that the court’s refusal to give a requested

charge only requires reversal if the defendant was prejudiced by that refusal).

      Judgment of Sentence Affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2020




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