J-A13017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT WILLIAM DUNKEL, JR.,

                            Appellant                 No. 918 WDA 2015


             Appeal from the Judgment of Sentence May 14, 2015
               In the Court of Common Pleas of Butler County
              Criminal Division at No: CP-10-CR-0001098-2013


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 15, 2016

        Appellant, Robert William Dunkel, Jr., appeals from the May 14, 2015

judgment of sentence entered in the Court of Common Pleas of Butler

County (“trial court”) following his conviction of harassment.1 Appellant

raises two issues on appeal that this court will address as challenges to the

weight and sufficiency of the evidence. Upon review, we affirm.

        The trial court summarized the relevant background as follows:

                     At trial, the Commonwealth first presented the
              testimony of [E.W.] [(“victim”)], then a resident of
              Slippery Rock, Pennsylvania and a student at Slippery Rock
              University. [The victim] testified that she met [Appellant]
              in January of 2013 through friends. [The victim] testified
              that the relationship with [Appellant] began casually, in
              that [Appellant] would typically talk and joke with [the
              victim’s] group of friends.     In February of 2013, she
              testified the relationship “started to get sexual.” [The
____________________________________________


1
    18 Pa.C.S.A. § 2709.
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          victim] indicated that [Appellant] became more “touchy
          feely,” he began hugging her, and making generalized
          sexual comments towards her. After a time, [Appellant]]
          began making more direct sexual comments towards [the
          victim], indicating it would be “hot” if she had sex with a
          female friend. [Appellant] also indicated he was unable to
          have sex because he was thinking about [the victim]. The
          comments were often inappropriate or unrelated to the
          conversations that were otherwise occurring. A few days
          after making those comments, [Appellant] cornered [the
          victim] between two tables and a wall outside of the
          Slippery Rock University Library. He would not let [the
          victim] leave until she gave him a hug.

                 Following that incident, on March 2, 2013, [the
          victim] sent [Appellant] a message via Facebook in which
          she indicated that [Appellant] needed to stop what he was
          doing, that it was inappropriate, and that it made her
          uncomfortable. After that message was sent, the actions
          of [Appellant] ceased until April 8, 2013. On that day [the
          victim] and a friend were walking on the Slippery Rock
          University campus when [Appellant] began walking
          towards them. [Appellant] approached and handed [the
          victim’s] friend a piece of paper. It was a forged health
          care document from, as [the victim] described it, a center
          for disease control, that contained [the victim’s name] and
          indicated that [the victim] had tested positive for syphilis.
          At trial, the Commonwealth introduced the document as
          Exhibit 1.      [The victim’s] friend, [N.K.], told her
          [Appellant] handed her the piece of paper and said he was
          concerned about [the victim] because such a document
          was easy to construct. A few days later, [the victim]
          reported the incident to Slippery Rock University.

                After she reported the incident, beginning on
          approximately April 11, 2013, [the victim] testified, she
          began seeing [Appellant] on campus. On one occasion
          [Appellant] approached [the victim’s] group of friends and
          began conversing with them.        [The victim] left and
          proceeded to walk to the dining hall. At approximately
          9:00 that evening, [the victim] decided to go to another
          dining hall.   [The victim] saw [Appellant] there and
          became frightened.    [Appellant] looked at her “a few
          times.” After phoning her mother, her mother called the
          Slippery Rock University police. Based on [Appellant’s]
          conduct, [the victim] became terrified and altered her
          behaviors in several ways. She began carrying pepper
          spray, going home more often, and traveling with others
          on campus.

                [R.Y.], a friend of [the victim], was the next witness
          presented by the Commonwealth at trial. She indicated
          that [Appellant] would often make comments of a sexual
          nature    regarding     [the   victim]    during   unrelated

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            conversations. [R.Y.] testified that the behavior of [the
            victim] changed as a result of [Appellant’s] actions. [The
            victim] became more fearful, [R.Y.] testified.

                  The Commonwealth’s next witness was [L.D.], the
            Director of Office of Student Conduct at Slippery Rock
            University. [L.D.] indicated that she had a conversation
            with [Appellant] on April 19, 2013, during which he
            indicated that he had prepared the fake report which
            indicated [the victim] had a sexually transmitted infection
            and gave it to [N.K.]

                   Officer Tyler Gray, with the Slippery Rock Unviersity
            Police Department, was the final witnesses presented to
            testify. He indicated that he responded to the call made
            by [the victim’s] mother. He testified that [Appellant] was
            perhaps 100 yards away from [the victim] as he was
            speaking to her. When [Appellant] was approached about
            the incident, Officer Gray indicated that he laughed about
            it.    Officer Gray also testified that the false report
            concerning the sexually transmitted infection was stamped
            “received” by the student center, though the document
            never went there.

Trial Court Opinion, 7/31/15, at 2-4 (internal citations omitted).

      On January 7, 2015, the trial court held a summary non-jury trial in

absentia, wherein the trial court found Appellant guilty of harassment.

During a sentencing proceeding on February 24, 2015, Appellant was

removed from the courtroom and the matter was continued to a later date.

On May 14, 2015, Appellant was sentenced to ninety days in the Butler

County Prison. Appellant filed a timely notice of appeal on June 8, 2015. On

June 10, 2015, the trial court directed Appellant to file a concise statement

of matters complained of on appeal. The trial court granted two extensions

to file a concise statement, and Appellant filed a concise statement on July

30, 2015. The trial court issued an opinion on July 31, 2015.

      On appeal, Appellant presents two issues which this Court quotes

verbatim.

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           I.    The [trial court] erred in determining that
                 [Appellant] was guilty beyond a reasonable doubt of
                 committing the offense of harassment. Whether as a
                 matter of fact [Appellant] could be convicted of the
                 [s]ummary [o]ffense of [h]arassment.

           II.   Whether as a matter of law [Appellant] could, on a
                 standard of proof beyond a reasonable doubt, be
                 convicted   of  the   [s]ummary     [o]ffense   of
                 [h]arrassment.   The [trial court] erred in this
                 conclusion.

Appellant’s Brief at 12. This Court views these unusually worded issues as

challenges to the weight and sufficiency of the evidence.

     This Court’s standard of review for sufficiency of the evidence is well

established.

     As a general matter, our standard of review of sufficiency claims
     requires that we evaluate the record in the light most favorable
     to the verdict winner giving the prosecution the benefit of all
     reasonable inferences to be drawn from the evidence. 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.
     Nevertheless, the Commonwealth need not establish guilt to a
     mathematical certainty. [T]he facts and circumstances
     established by the Commonwealth need not be absolutely
     incompatible with the defendant's innocence. Any doubt about
     the defendant’s guilt is to be resolved by the fact finder unless
     the evidence is so weak and inconclusive that, as a matter of
     law, no probability of fact can be drawn from the combined
     circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(quoting Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa. Super.

2013)).   However, in order to address a challenge to the sufficiency of the

evidence, it must be preserved for appeal. See Commonwealth v. Tyack,

128 A.3d 254, 260 (Pa. Super. 2015).

           If [a]ppellant wants to preserve a claim that the evidence
           was insufficient, then the 1925(b) statement needs to
           specify the element or elements upon which the evidence
           was insufficient. This Court can then analyze the elements

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            or elements on appeal. [Where a] 1925(b) statement []
            does not specify the allegedly unproven elements[,] . . .
            the sufficiency issue is waived [on appeal].

Id. (quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.

Super. 2008) (quoting Commonwealth v. Flores, 921 A.2d 517, 522-523

(Pa. Super. 2007))).

      In the matter sub judice, Appellant’s 1925(b) statement failed to

specify the element or elements upon which the evidence was insufficient.

Therefore, Appellant’s claim is waived.         Even if Appellant’s claim was

preserved for appeal, the claim is meritless.

      To establish guilt of summary harassment, the Commonwealth must

prove: (1) the person engages in a course of conduct or repeatedly commits

acts which serve no legitimate purpose; and (2) does so with the intent to

harass, annoy or alarm another. 18 Pa.C.S.A. § 2709(a)(3). “An intent to

harass   may     be   inferred   from   the   totality   of   the   circumstances.”

Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super. 2002). “A course

of conduct intended to harass, annoy or alarm a person can be based on

words alone.” Id. (citing Commonwealth v. Duncan, 363 A.2d 803 (Pa.

Super. 1976)).

      The evidence established that Appellant made inappropriate sexual

comments on multiple occasions, blocked an exit and refused to let the

victim leave without hugging Appellant, and inappropriately hugged and

touched the victim. The victim sent Appellant a message on Facebook that

his actions were inappropriate, made the victim extremely uncomfortable,


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J-A13017-16



and he needed to stop the inappropriate behavior.         After this message,

Appellant stopped for approximately one month.

      Subsequently, on April 8, 2013, Appellant approached the victim and

her friend. The victim felt uncomfortable and continued walking. Appellant

gave the victim’s friend a forged medical document, which stated the victim

had a sexually transmitted disease, with instructions to give the victim the

document. Appellant admitted that he created the document. The day after

the victim reported this incident, Appellant followed the victim to multiple

dining halls.   Viewing the evidence in the light most favorable to the

Commonwealth, there was sufficient evidence establishing that Appellant

engaged in a course of conduct which served no legitimate purpose with the

intent to harass, annoy, or alarm the victim. Appellant’s sufficiency claim is

meritless.

      The Court views Appellant’s second issue as a challenge to the weight

of the evidence. It is well established that

      [a]ppellate 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 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.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation

omitted). Furthermore, a weight of the evidence claim “concedes that there



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is sufficient evidence to sustain the verdict.”         Commonwealth v. Smith,

853 A.2d 1020, 1028 (Pa. Super. 2004) (citation omitted).                 In order to

preserve a challenge to the weight of the evidence, the concise statement

must include specific reasons as to why the verdict was against the weight of

the evidence. See Commonwealth v. Freeman, 128 A.3d 1231, 1248-49

(Pa. Super. 2015).

      In the matter sub judice, Appellant’s 1925(b) statement failed to

identify any specific reason why the verdict was against the weight of the

evidence.     Therefore, Appellant has waived this issue.                Furthermore,

Appellant failed to preserve a weight of the evidence claim by raising it

before the trial court.      A challenge to the weight of the evidence must be

raised orally, on the record, at any time before sentencing, by written

motion at any time before sentencing, or in a post-sentence motion.              See

Pa.R.Crim.P. 607.       While post-sentence motions are not permitted in a

summary appeal, Appellant must still assert a challenge to the weight of the

evidence in order to preserve the issue for appeal. See Commonwealth v.

Dougherty, 679 A.2d 779, 784 n. 3 (Pa. Super. 1996); Pa.R.Crim.P. 720.

Because he did not do so, the claim is waived. Id.

      Even if Appellant preserved the issue on appeal, he would not be

entitled to relief.    It appears Appellant is challenging the credibility of the

victim,   which   is   not    for   this   Court   to   assess   or   reweigh.   See

Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (“The

weight of the evidence is exclusively for the finder of fact, which is free to

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believe all, part or none of the evidence, and to assess the credibility of the

witnesses.) Accordingly, we would not have found the trial court abused its

discretion in denying his weight of the evidence challenge based on

credibility issues.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




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