J-S34039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RUSSELL PHILIP GIBSON                      :
                                               :
                       Appellant               :   No. 119 WDA 2019

       Appeal from the Judgment of Sentence Entered December 4, 2018
     In the Court of Common Pleas of Clearfield County Criminal Division at
                       No(s): CP-17-CR-0001141-2017


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                               FILED AUGUST 6, 2019

        Appellant, Russell Philip Gibson, appeals from the judgment of sentence

imposed for his conviction of harassment following a joint jury/bench trial.

For the reasons set forth below, we affirm in part and vacate in part.

        This case arises out of an argument and altercation between Appellant

and his girlfriend, Dawn Hannold, on December 7, 2017.           Appellant was

charged with terroristic threats, simple assault, and harassment.1 On October

19, 2018, the case proceeded to trial, with the terroristic threats and simple

assault charges tried to a jury and the harassment charge, a summary

offense, tried to the trial judge.




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1   18 Pa.C.S. §§ 2706(a)(1), 2701(a)(1), and 2709(a)(1).



*    Retired Senior Judge assigned to the Superior Court.
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      Both Hannold and Appellant testified at trial that they had been drinking

beer and got into an argument when Hannold became upset over a phone call

that Appellant received from a girl and took Appellant’s cell phone.       Both

Hannold and Appellant also testified that Appellant took his phone back and

that Hannold packed up her belongings and left Appellant’s trailer with the

dog that they jointly owned. Hannold testified that Appellant struck her on

the back with a dog leash two or three times and told her as she was leaving

that if “[y]ou take my dog, I’m going to smash your head in.” N.T. Trial at

37-39. Appellant testified that Hannold pushed him and that he pushed her

back and told her “to get the hell out,” and denied that he hit Hannold with a

dog leash. Id. at 77-85.

      The jury acquitted Appellant of the terroristic threats and simple assault

charges. N.T. Trial at 123-24. Immediately following the jury verdict, the

trial court found Appellant guilty of harassment. Id. at 124. On December 4,

2018, the trial court sentenced Appellant to 90 days’ probation for the

harassment conviction. N.T. Sentencing at 10; Sentencing Order at 1. In this

sentence, the trial court imposed as conditions of Appellant’s probation that

he have no contact with Hannold and refrain from the consumption of alcoholic

beverages and also required that Appellant “shall remove any excess scrap,

garbage and other debris from his property … such that the property shall

meet the conditions of all Sandy Township Code requirements.”              N.T.

Sentencing at 10-11; Sentencing Order at 1-2.        This latter condition was


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imposed based on a township code violation of which the trial court had found

Appellant guilty in a separate, unrelated proceeding. N.T. Sentencing at 5-9.

Appellant’s counsel objected to imposition of this condition at the sentencing.

Id. at 4-5. This timely appeal followed. The trial court stayed Appellant’s

sentence pending the appeal.

      In this appeal, Appellant presents the following issues for our review:

      I. Whether the [trial court] finding the Defendant guilty on the
      charge of Harassment (S) was against the sufficiency of the
      testimony and evidence presented at his trial held on October 19,
      2018 when the jury acquitted the Appellant of charges of
      Terroristic Threats (M1) and Simple Assault (M2).

      II. Whether the inclusion of the requirement that the Appellant
      “remove any excess scrap garbage and other debris from his
      property” in trial court’s sentence of December 4, 2018 for
      Harassment (S) was an abuse of discretion as there was no
      evidence offered at trial regarding the condition of the Appellant's
      property, nor was the condition of the Appellant’s property in any
      way related to the charges in the above captioned case.

Appellant’s Brief at 6.

      Our standard of review on a challenge to the sufficiency of the evidence

is well-settled:

      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.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (quoting

Commonwealth v. Estepp, 17 A.3d 939 (Pa. Super. 2011)). A person is

guilty of the crime of harassment if that person, “with intent to harass, annoy

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or alarm another, ... strikes, shoves, kicks or otherwise subjects the other

person to physical contact or threatens to do the same.” 18 Pa.C.S. §

2709(a)(1). The evidence at trial was sufficient to prove all of these elements,

as Hannold testified that Appellant struck her with a dog leash several times

in a heated argument and the trial court found that testimony credible. N.T.

Trial at 37-389; Trial Court Opinion at 3-5. Indeed, Appellant admitted that

he shoved Hannold several times in their argument after she initiated the

shoving match. N.T. Trial at 77-85.

      Appellant argues that the jury’s verdict acquitting him of terroristic

threats and simple assault barred the trial court from finding that Hannold was

credible and that the Commonwealth proved the elements of harassment.

This argument fails for two reasons. First, where, as here, a single jury/bench

trial is conducted and the defendant is not subjected to a subsequent trial

following an acquittal, the trial court is not bound by the jury’s credibility

determinations and may make findings different from and inconsistent with

the jury’s findings. Commonwealth v. McNeal, 120 A.3d 313, 327-28 (Pa.

Super. 2015); Commonwealth v. Wharton, 594 A.2d 696, 699 (Pa. Super.

1991); Commonwealth v. Yachymiak, 505 A.2d 1024, 1027 (Pa. Super.

1986). Compare Commonwealth v. States, 938 A.2d 1016, 1021-27 (Pa.

2007)   (where   summary     offense    acquittal   necessarily   decided   issue,

subsequent jury trial on charges inconsistent with that acquittal was barred).




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        Second, the jury’s verdict is not inconsistent with proof of the elements

of harassment. The acquittals do not require the conclusion that the jury

rejected Hannold’s testimony that Appellant hit her with the leash. A jury may

believe all, some, or none of a witness’s testimony, and the fact that an

acquittal shows the jury did not believe part of a witness’s testimony does not

show     that   it   disbelieved   everything   to   which   the   witness   testified.

Commonwealth v. Barger, 956 A.2d 458, 464 (Pa. Super. 2008) (en banc)

(jury acquittal of sexual assault and terroristic threat charges was not

inconsistent with trial court finding that defendant was guilty of harassment

because jury could have believed victim’s testimony that defendant slapped

her but not believed her testimony that he sexually assaulted and threatened

her).

        The charge of terroristic threats required proof that Appellant

communicated a threat to commit a crime of violence with intent to terrorize

Hannold. 18 Pa.C.S. § 2706(a)(1). The simple assault charge required proof

that Appellant caused or attempted to cause bodily injury to Hannold.               18

Pa.C.S. § 2701(a)(1).         Bodily injury is defined by the Crimes Code as

“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.

The jury could well have based its acquittal on the conclusion that Appellant

did not threaten Hannold and that although he hit her with the leash, her

claims of pain were exaggerated and he neither caused nor attempted to cause

injury or substantial pain.        Such a determination is not inconsistent with


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finding Appellant guilty of harassment, as harassment requires proof only of

“intent to harass, annoy or alarm,” not proof of any threat, injury, or infliction

of pain or of any intent to inflict injury or substantial pain.     18 Pa.C.S. §

2709(a)(1); Commonwealth v. Williams, 166 A.3d 460, 464 (Pa. Super.

2017); Commonwealth v. Townley, 722 A.2d 1098, 1099 (Pa. Super.

1998).

      In his second issue, Appellant contends that the condition of his

probation that he bring his property into compliance with an unrelated

ordinance is not a condition authorized under Section 9754 of the Sentencing

Code. Appellant’s Brief at 16-17. This constitutes a challenge to the legality

of the trial court’s sentence and is a question of law subject to this Court’s

plenary review. Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013);

Commonwealth v. Pi Delta Psi, Inc., ___ A.3d ___, ___ 2019 PA Super

167, *24 (No. 458 EDA 2018, filed May 23, 2019); Commonwealth v.

Rivera, 95 A.3d 913, 915 (Pa. Super. 2014).

      Section 9754 of the Sentencing Code provides that in imposing a

sentence of probation “[t]he court shall attach such of the reasonable

conditions authorized by subsection (c) of this section as it deems necessary

to insure or assist the defendant in leading a law-abiding life.” 42 Pa.C.S. §

9754(b). Subsection (c) of the statute states:

      The court may as a condition of its order require the defendant:

      (1) To meet his family responsibilities.


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     (2) To devote himself to a specific occupation or employment.

     (2.1) To participate in a public or nonprofit community service
     program unless the defendant was convicted of murder, rape,
     aggravated assault, arson, theft by extortion, terroristic threats,
     robbery or kidnapping.

     (3) To undergo available medical or psychiatric treatment and to
     enter and remain in a specified institution, when required for that
     purpose.

     (4) To pursue a prescribed secular course of study or vocational
     training.

     (5) To attend or reside in a facility established for the instruction,
     recreation, or residence of persons on probation.

     (6) To refrain from frequenting unlawful or disreputable places or
     consorting with disreputable persons.

     (7) To have in his possession no firearm or other dangerous
     weapon unless granted written permission.

     (8) To make restitution of the fruits of his crime or to make
     reparations, in an amount he can afford to pay, for the loss or
     damage caused thereby.

     (9) To remain within the jurisdiction of the court and to notify the
     court or the probation officer of any change in his address or his
     employment.

     (10) To report as directed to the court or the probation officer and
     to permit the probation officer to visit his home.

     (11) To pay such fine as has been imposed.

     (12) To participate in drug or alcohol treatment programs.

     (13) To satisfy any other conditions reasonably related to the
     rehabilitation of the defendant and not unduly restrictive of his
     liberty or incompatible with his freedom of conscience.

     (14) To remain within the premises of his residence during the
     hours designated by the court.

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42 Pa.C.S. § 9754(c).

      None of the specific types of conditions listed in Subsection 9754(c)

provides that the defendant may be compelled to maintain his property in

compliance with local ordinances or cure or abate conditions on property that

he owns. The only possible authority for the probation condition at issue here

is therefore Subsection (c)(13), authorizing “any other conditions reasonably

related to the rehabilitation of the defendant and not unduly restrictive of his

liberty or incompatible with his freedom of conscience.” 42 Pa.C.S. §

9754(c)(13).   We conclude that this provision does not authorize the trial

court’s imposition in this case of a condition that Appellant remove excess

scrap, garbage, and debris from his property and bring the property in

compliance with all township code requirements.

      Subsection   9754(c)(13)    authorizes   conditions   that   bear   some

reasonable relationship to the conduct or crime of which the defendant has

been found guilty or to preventing or remedying such conduct, not the

imposition of conditions not authorized by the other provisions of Subsection

9754(c) that have no connection whatsoever to the defendant’s crime or to

any conduct involved or connected to that crime. See Pi Delta Psi, ___ A.3d

at ___ 2019 PA Super 167, *29 (total exclusion from state encompassing

activities unconnected with the hazing incident of which defendant was

convicted was not authorized by Subsection 9754(c)(13)); Commonwealth

v. Kinnan, 71 A.3d 983, 988 (Pa. Super. 2013) (restitution not authorized

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under Subsection 9754(c)(13) where victim suffered no loss from defendant’s

crime); Commonwealth v. Houtz, 982 A.2d 537, 539–41 (Pa. Super. 2009)

(setting aside condition of probation prohibiting computer and internet use

where there was no evidence that defendant’s crime involved any computer

or internet use).

      Here, the condition concerning Appellant’s property requiring removal

of debris and satisfaction of local township code requirements is devoid of any

connection at all to the crime and conduct of which Appellant was convicted

in this case, harassment in an altercation with his girlfriend that had nothing

to do with the condition of the property. Instead, the trial court imposed this

condition to remedy a violation that it found in a separate and unrelated

township code appeal. N.T. Sentencing at 5-10. None of the cases relied on

by the trial court or the Commonwealth hold that conditions completely

unconnected to the conviction at issue may be imposed under Subsection

9754(c)(13). Rather, the conditions upheld in those cases were all related to

the defendant’s crime for which the probation was imposed.                See

Commonwealth v. Harner, 617 A.2d 702, 703, 706-07 (Pa. 1992)

(condition of probation ordering defendant convicted of interference with

custody to reimburse aggrieved parent for his expenses locating and obtaining

return of children was within trial court’s authority under Section 9754);

Commonwealth v. Walton, 397 A.2d 1179, 1180-81, 1185 (Pa. 1979)

(upholding order that defendant as a condition of probation to pay $25 per


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week to the seriously and permanently injured victim of the aggravated

assault of which defendant was convicted); Commonwealth v. Fullin, 892

A.2d 843, 853-54 (Pa. Super. 2006) (condition prohibiting defendant from

operating motor vehicle upheld because defendant’s conviction arose out of

automobile accident); Commonwealth v. Koren, 646 A.2d 1205, 1209-10

(Pa. Super. 1994) (where defendant was convicted of hindering apprehension

of a fugitive, condition prohibiting defendant from contact with the individual

whose apprehension she hindered was permissible).2

       The Commonwealth argues and the trial court reasoned in its opinion

that the condition concerning Appellant’s property is permissible because it is

no different than a community service requirement.          We do not agree.

Imposition of community service as a condition of probation is specifically

authorized by Section 9754 of the Sentencing Code without regard to whether

the community service has any connection to the defendant’s crime.            42

Pa.C.S. § 9754(c)(2.1). Requiring a defendant to clean up or maintain his

property is not specifically authorized by Section 9754 as a condition of

probation and is therefore dependent for its validity on Subsection

9754(c)(13) and the existence of some connection to the crime at issue.

Moreover, the trial court’s condition is significantly different from a community



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2 In Hall, also cited by the trial court and the Commonwealth, the condition,
imposition of an obligation to provide child support to the victim’s children,
was vacated as beyond the trial court’s authority. 80 A.3d at 1216-18.

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service requirement, as it did not merely require that Appellant work a set

number of hours on cleaning up the property, but required that he achieve a

prescribed result, “that the property shall meet the conditions of all Sandy

Township Code requirements.” N.T. Sentencing at 11; Sentencing Order at 2.

      For the foregoing reasons, we reject Appellant’s challenge to his

harassment conviction, but vacate the trial court’s condition of his probation

sentence requiring Appellant to remove scrap, garbage, and other debris from

his property and to meet the conditions of township code requirements with

respect to his property. Because the vacating of this condition might affect

the trial court’s sentencing scheme, we remand this case to the trial court for

resentencing, at which the trial court is free to impose conditions on

Appellant’s probation that are specifically authorized by Section 9754 of the

Sentencing Code or are sufficiently connected to the conviction in this case to

be within the trial court’s authority under Subsection 9754(c)(13) of the

Sentencing Code. See Rivera, 95 A.3d at 918.

      Judgment of sentence requiring Appellant to remove scrap, garbage and

other debris from his property and bring his property into compliance with all

Sandy Township Code requirements is vacated. Judgment of sentence in all

other respects is affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2019




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