J-A28038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                          Appellee

                     v.

MARC E. ROTHSTEIN

                          Appellant                No. 330 EDA 2014


         Appeal from the Judgment of Sentence December 6, 2013
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0008517-2012


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                   FILED NOVEMBER 25, 2014

     Appellant Marc Rothstein (“Appellant”) appeals the judgment of

sentence entered on December 6, 2013, by the Montgomery County Court of

Common Pleas. After careful consideration, we affirm.

     The trial court summarized the facts and procedural history of this

matter as follows:

           On May 22, 2012, at approximately 6:30 p.m., Eileen Potts
     arrived at her home located in a townhouse development at 103
     Stratford Court, Lansdale, Montgomery County, PA, after having
     had dinner with her sister, Sharon Glick. Appellant was and
     remains a neighbor of both Ms. Potts and Ms. Glick, who live
     together with Ms. Potts’ husband. Appellant lives two doors
     down from the Potts-Glick home.

           On that evening, Ms. Potts drove up to her home and she
     saw Appellant talking with her sister in a neighbor’s yard. As
     Ms. Potts pulled into her driveway she had an unobstructed view
     of Appellant. Her vehicle was facing right towards him. She
     observed Appellant had a very big hole in the front of his khaki
     pants. A rip, a very clean cut that looked like it was done with
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     scissors. Appellant had no underwear on. Ms. Potts was very
     horrified, scared and really freaked out when she observed
     Appellant’s erect penis and scrotum exposed by the gaping hole
     in his khaki pants. At that point, Ms. Potts wanted to get her
     sister out of the situation. She got out of her car, and as she
     held up her cell phone, she told her sister that someone was on
     the phone and wanted to talk to her. They went quickly into
     their home.

            At trial, Ms. Glick, who arrived home a few minutes before
     her sister, testified that she parked her car in the same parking
     spot as usual. As she got out of her car, Appellant was coming
     out of his home and engaged her in small talk. At that point,
     Appellant was approximately 12 feet away from Ms. Glick. Ms.
     Glick noticed that Appellant was wearing khaki pants that had a
     huge gaping cut in them. A cut from about the middle of the
     crotch down to about the knee. She noticed the cut right away.
     Ms. Glick thought she had better get into her home as fast as
     she can. She moved quickly towards her house and tried to
     position herself behind a neighbor’s for sale sign to act as a
     barrier to her view of Appellant’s pants. At that point, Ms.
     Glick’s sister arrived home and was able to extricate her from
     the situation.

           The sisters were very shocked, and they went immediately
     to the police station to report the incident as it seemed like an
     escalation from other previous and similar incidents that
     occurred throughout the previous year.

            Appellant was charged two days after the May 22, 2012
     incident, and he proceeded to a two-day trial that commenced
     on September 30, 2013. At trial both Ms. Glick and Ms. Potts
     testified.    On behalf of Appellant, defense counsel called
     numerous character witnesses to testify. In addition, Appellant
     testified in his own defense testifying that he had not known all
     day there was a rip in his pants and he threw them out as soon
     as he realized it that night. It was also part of the defense
     theory that the victims were not Appellant’s type of women that
     he is attracted to. Appellant admitted that he knew of no reason
     that both victims would make up these allegations.

           At the conclusion of the trial, a jury found Appellant guilty
     of [one count of] indecent exposure.           This [c]ourt found
     Appellant guilty of two counts of harassment. Appellant was
     sentenced on December 6, 2013. A post-sentence motion was


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      filed on December 16, 2013, which was subsequently denied on
      January 3, 2014. This timely appeal followed.

1925(a) Opinion, pp. 1-3 (record citations and quotations omitted).

      Appellant raises the following claims for review:

      1. Was the evidence insufficient as a matter of law to sustain
      [Appellant’s] conviction for indecent exposure?

      2. Was the evidence insufficient as a matter of law to sustain
      [Appellant’s] convictions for harassment?

      3. Even if the evidence was sufficient to sustain [Appellant’s]
      convictions, were the verdicts nevertheless against the weight of
      the evidence?

Appellant’s Brief, p. 4.

   1. Sufficiency of the Evidence – Indecent Exposure

      Appellant first claims the Commonwealth adduced insufficient evidence

to convict him of indecent exposure. He is incorrect.

      When examining a challenge to the sufficiency of evidence, this Court’s

standard of review 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 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


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     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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011).

     The Crimes Code defines indecent exposure as:

     (a) Offense defined.–A person commits indecent exposure if
     that person exposes his or her genitals in any public place or in
     any place where there are present other persons under
     circumstances in which he or she knows or should know that this
     conduct is likely to offend, affront or alarm.

18 Pa.C.S. § 3127.        “[I]t is well-established that the uncorroborated

testimony of the complaining witness is sufficient to convict a defendant of

sexual offenses.”   Commonwealth v. Castelhun, 889 A.2d 1228, 1233

(Pa.Super.2005) (citations omitted); Commonwealth v. Trimble, 615 A.2d

48, 50 (Pa.Super.1992).

     Here,    the    trial   court   explained   the    indecent    exposure

testimony/evidence as follows:

            In this case, the decisive and unwavering testimony of Ms.
     Potts and Ms. Glick established that Appellant had a large gaping
     rip in his khaki pants. The rip looked intentionally made with a
     scissors. It was from [the] middle of the crotch area down to
     about the knee area. A cut which would be hard not to notice,
     contra to Appellant’s testimony that he was unaware there was a
     rip in his pants.      Additionally, Ms. Potts testified that the
     unobstructed view of Appellant and the rip in his pants exposed
     his erect penis and scrotum. This left Ms. Potts feeling horrified,
     scared and really freaked out.        This evidence showed that
     Appellant exposed his erect penis and scrotum, seen by Ms.
     Potts, under the guise of making small talk with Ms. Glick, who

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      purposely obstructed her own view. It is reasonable to assume
      that exposing his genitals under these circumstances to Ms.
      Potts would offend, affront or alarm.

1925(a) Opinion, p. 12 (quotations omitted). Further, the trial court found

the Commonwealth victims’ testimony fully credible:

      Ms. Potts’ and Ms. Glick’s testimony was decisive and never
      waivered. Although each sister had a different vantage point of
      the incident and their respective testimony reflected this
      difference, their testimony was consistent with each other’s in all
      other aspects. It is important to note that the incident occurred
      at about 6:30 p.m. on May 22, 2012, when it was still light
      outside. There was nothing even remotely unreliable about the
      testimony of either victim.

Id. This Court is bound by the trial court’s credibility determinations. See

Commonwealth v. Gibson, 720 A.2d 473, 481 (Pa.1998) (“Credibility

determinations are strictly within the province of the finder of fact;

therefore, an appellate court may not reweigh the evidence and substitute

its judgment for that of the finder of fact.”).

      Viewed in the light most favorable to the Commonwealth as verdict

winner, this evidence was sufficient to convict Appellant of indecent

exposure.

   2. Sufficiency of the Evidence – Harassment

      Appellant next claims the Commonwealth’s evidence was insufficient to

support his conviction for harassment because the Commonwealth did not

prove a course of conduct. Again, he is incorrect.




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      The Crimes Code defines 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:

                                      *****

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

18 Pa.C.S. § 2709. “An intent to harass may be inferred from the totality of

the   circumstances.”       Commonwealth         v.   Cox,   72   A.3d   719,   721

(Pa.Super.2013); see also Commonwealth v. Reynolds, 835 A.2d 720,

726 (Pa.Super.2003) (“Intent can be proven by circumstantial evidence and

may be inferred from the defendant’s conduct under the attendant

circumstances.”). Further, 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. Acts indicating a course of conduct which occur in
      more than one jurisdiction may be used by any other jurisdiction
      in which an act occurred as evidence of a continuing pattern of
      conduct or a course of conduct.

18 Pa.C.S. § 2709(h).

      Here,   the   trial   court   summarized    the   harassment-specific     trial

testimony as follows:

      . . . Ms. Potts testified that the May 22, 2012, incident was
      similar in nature to about 3 or 4 previous incidents that occurred
      throughout the previous year. She described one in particular in
      which Appellant was wearing pajama type bottoms, which she
      described as Eagles pants, without a zipper. It was open where
      the zipper would be. On that occasion, Ms. Potts and Ms. Glick
      were getting ready to go to the movies on a Saturday. As Ms.
      Potts started driving forward after backing out of her driveway,

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       she saw Appellant on his front porch with his penis sticking out
       of his pants as he waived [sic] to the sisters. In about 3 other
       incidents, Ms. Potts described how Appellant would go out to his
       car as if he was doing something, and when he’d turn around
       Ms. Potts observed that he had an erection. These incidents
       made Ms. Potts feel very scared.

             Ms. Glick described prior incidents as well. She testified
       that in these other incidents, Appellant would be wearing flannel
       Eagles bottoms with a flap in the front where the zipper would
       be on regular pants. Appellant would come out of his home and
       engage in small talk and all of a sudden Appellant would position
       himself in such a manner that she could see he had an erection.
       In particular, Ms. Glick recalled a time in which Appellant was
       just standing there and his penis came out of his pants, and he
       swiped over his penis to put it back in his pants. Ms. Glick
       approximated that these incidents occurred about 15 times.
       These incidents made Ms. Glick feel frightened.

1925(a) Opinion, pp. 13-14 (record citations and footnote omitted).

       Viewed in the light most favorable to the Commonwealth as verdict

winner, this evidence illustrated Appellant engaged in repeated behavior

intended to harass, annoy, or alarm.             Accordingly, the Commonwealth

adduced sufficient evidence to convict Appellant of harassment.

    3. Weight of the Evidence

       Finally, Appellant makes a weight of the evidence claim1 as to his

convictions based on alleged deficiencies in the victim-witnesses’ perception.

The claim lacks merit.



____________________________________________


1
  Appellant properly preserved this claim by filing a post-sentence motion
that requested a new trial based on weight of the evidence.           See
Pa.R.Crim.P. 607.



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       This Court’s review of weight of the evidence claims is governed by the

following standard:

       A motion for new trial on the grounds that the verdict is contrary
       to the weight of the evidence, concedes that there is sufficient
       evidence to sustain the verdict. Thus, the trial court is under no
       obligation to view the evidence in the light most favorable to the
       verdict winner. An allegation 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. A trial judge must
       do more than reassess the credibility of the witnesses and allege
       that he would not have assented to the verdict if he were a
       juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. 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.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice, 2 “such that right must be
____________________________________________


2
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury's verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

(Footnote Continued Next Page)


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given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).             Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.         Widmer, 744 A.2d at 753.      When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

      The trial court’s 1925(a) opinion extensively and repeatedly discussed

the details of the victim-witnesses’ testimony and found both Ms. Potts and

Ms. Glick completely reliable.          See 1925(a) Opinion, pp. 12, 15-16; see

Gibson, supra. Nothing about the verdict or the reasoning contained in the

trial court’s 1925(a) opinion shocks the conscience. The trial court did not

abuse its discretion in denying Appellant’s post-sentence motion for a new

trial based on the weight of the evidence.

      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

Commonwealth v. Davidson, 860 A.2d 575, 581                      (Pa.Super.2004)
(internal citations and quotations omitted).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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