J-A13029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LYNN ADELE HARMER                          :
                                               :
                      Appellant                :   No. 2986 EDA 2016

            Appeal from the Judgment of Sentence August 25, 2016
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-SA-0000689-2016


BEFORE:      LAZARUS, J., OTT, J. and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                     FILED JULY 14, 2017

        Lynn Adele Harmer appeals from the judgment of sentence imposed

August 25, 2016, in the Montgomery County Court of Common Pleas. The

trial court found Harmer guilty of two counts of harassment (course of

conduct),1 and imposed a fine of $300.00, plus costs, on each count.          On

appeal, Harmer contends the trial court erred and abused its discretion when

it failed to find her actions were constitutionally protected activity. For the

reasons below, we affirm.

        The charges in this matter arose via two summary citations for

harassment issued by the Lower Salford Township Police Department in

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S § 2709(a)(3).
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December 2015, and March 2016. Harmer resides at 480 Freeman School

Road in Harleysville, Pennsylvania. The victims of her crimes were her next

door neighbors – Marian Kidd, her son Joseph Kidd, his wife Nicole, and their

two young children - who live at 490 Harleysville Road, Harleysville,

Pennsylvania.    As the trial court explains, Harmer’s “hostility at her

neighbors stems from a disputed property line and the usage of a shared

driveway.” Trial Court Opinion, 11/9/2016, at 2.

      The court summarized the incidents leading to the present charges as

follows:

             The episodes of aggressive behavior which gave rise to this
      case started in December of 2015, when [Harmer] exited her
      home and began yelling at Joseph Kidd, as he parked his sister-
      in-law’s car. The police were called as a response to the incident
      and as a result the first citation was issued. A hearing on the
      citation was conducted in Magisterial District MDJ-38-1-24 before
      the Honorable Albert J. Augustine, Magistrate on March 9, 2016.
      This Court gleaned from the trial testimony, that Judge
      Augustine issued a verbal order, directing that the parties not
      have any contact with each other. The day after the hearing, on
      March 10, 2016, [Harmer] entered onto the property of the
      victim family, in violation of the verbal order from Magistrate
      Augustine, and destroyed and removed a rose bush from in front
      of a flagpole located on the property belonging to the Kidd
      family.6 The conduct of [Harmer] alarmed victim Nicole Kidd so
      much, that she began to record the activities of [Harmer] that
      day, on her iPad, from the inside of her home. [Harmer]
      received a citation … as a result of that incident. Yet, in spite of
      the criminal citations and ‘stay away’ order, [Harmer] continued
      to victimize the Kidd family. On April 7, 2016, [Harmer] began
      to scream at victim Mari[a]n Kidd, after she had backed her car
      into a parking space, and as she attempted to enter her home.
      During that episode [Harmer] was observed with a hammer in
      her hand.7 [Harmer] was also observed as she placed metal
      stakes along the shared driveway. Joseph Kidd, also recorded


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       video of instances where [Harmer] can be seen engaged in rants
       and tirades, directed toward his family members.
       __________
          6
            [Harmer] testified on cross examination that “I never
          thought that he meant that I verbally couldn’t say
          something to them.[”] N.T. at pg. 49.
          7
           [Harmer] testified on cross examination, that she had a
          hammer and a stake to plant grass. N.T. at pg. 49.

Id. at 2-3 (some footnotes and record citations omitted).

       On June 16, 2016, Harmer appeared before a magisterial district

justice, and was found guilty on both the summary citations.     She filed a

timely appeal to the trial court, which conducted a de novo trial on August

25, 2016.      During the trial, the Commonwealth played for the court the

videotaped episodes of Harmer’s behavior, which the Kidds had recorded on

their iPad.2    Harmer testified in her own defense, asserting she owns the

property in question, and had “every right to take a rosebush or plant

grass[.]” N.T., 8/25/2016, at 41. At the conclusion of trial, the court found

Harmer guilty of two counts of summary harassment, and imposed a $300

fine, plus costs, on each count. This timely appeal follows.3


____________________________________________


2
  Although the videos were marked for identification, and moved into
evidence, they were not included in the certified record because they were
retained by the Kidds on their iPad. See N.T., 8/25/2016, at 15, 21.
3
  On September 23, 2016, the trial court ordered Harmer to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Harmer complied with the court’s directive and filed a concise statement on
October 11, 2016.




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       On appeal, Harmer contends the trial court erred in failing to conclude

her actions were “constitutionally protected activity,” and therefore, not

prosecutable under the harassment statute.4            18 Pa.C.S. § 2709(e).     See

Harmer’s Brief at 7, 13.           Specifically, she insists her “activities were

motivated by and consisted of her desire and effort to acquire, possess, and

protect her property[,]” which she accomplished through her constitutional

right to “free speech and redress of grievances.”              Harmer’s Brief at 7.

Moreover, Harmer maintains that although the trial court recognized this

was a property dispute, it “refused to consider allowing defining evidence on

that matter[,]” and, consequently, violated her due process right to

fundamental      fairness.   Id.    at   9.     Furthermore,   Harmer   argues   the

Commonwealth failed to prove she acted with the requisite intent to harass

or annoy the Kidds and without any legitimate purpose. Id. at 11-12.

       We regard Harmer’s issues on appeal as a challenge to the sufficiency

of the evidence supporting her convictions. Our standard of review of such

claims is well-settled:

          Viewing the evidence in the light most favorable to the
          Commonwealth as the verdict winner, and taking all
          reasonable inferences in favor of the Commonwealth, the
____________________________________________


4
  We note Harmer purports to raise two issues on appeal: the first,
addressing her constitutional right to protect her property, and the second,
addressing her constitutional right to free speech and redress of grievances.
See Harmer’s Brief at 7, 13. However, in her second issue, she simply
incorporates the arguments from her first issue. See id. at 13. Therefore,
we will address the issues together.



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         reviewing court must determine whether the evidence
         supports the factfinder’s determination of all of the
         elements of the crime beyond a reasonable doubt.

      The fact-finder “bears the responsibility to resolve questions of
      credibility, and, absent extraordinary circumstances, an
      appellate court will not substitute its judgment for that of the
      factfinder.” A court “is free to believe all, some, or none of the
      evidence presented.” “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.”

Commonwealth v. Blackham, 909 A.2d 315, 319 (Pa. Super. 2006)

(internal citations omitted), appeal denied, 919 A.2d 954 (Pa. 2007).

      Here, Harmer challenges her conviction of two counts of harassment.

A person may be guilty of harassment “when, with intent to harass, annoy

or alarm another, the person … engages in a course of conduct or repeatedly

commits acts which serve no legitimate purpose[.]”              18 Pa.C.S. §

2709(a)(3).   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.” Id. at § 2709(f). Furthermore,

this Court has held that a defendant’s “intent to harass may be inferred from

the totality of the circumstances” and “[a] course of conduct … can be based

on words alone.” Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super.

2002) (citations omitted).     Significant to this appeal, the statute also

explicitly provides: “This section shall not apply to constitutionally protected

activity.” 18 Pa.C.S. § 2709(e).




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       There    is   a   dearth    of   case   law   interpreting   what   constitutes

“constitutionally protected activity” as to avoid prosecution for harassment. 5

Id. In Commonwealth v. Duncan, 363 A.2d 803 (Pa. Super. 1976) (en

banc), an en banc panel of this Court considered whether a defendant’s

repeated request that the complainant engage in a sexual act with him

constituted harassment.         The complainant, who had been sleeping in the

lounge of her dormitory, rebuffed the defendant several times and asked

him to leave. When he finally did, she reported the incident to her resident

adviser. See id. at 805. On appeal from his conviction of harassment, the

defendant argued, inter alia, “his conviction … was based solely on a verbal

communication and therefore was in violation of his rights under the First

Amendment to the United States Constitution.” Id. at 806. However, the

en banc panel disagreed, noting “the right of free speech is not absolute at

all time and under all circumstances.”           Id., quoting Chaplinksy v. New

Hampshire, 315 U.S. 568, 571 (1943).                 The panel concluded that the
____________________________________________


5
  We note subsection (e) was not added until June of 1993, and originally
read as follows: “This section shall not apply to conduct by a party to a
labor dispute as defined in the act of June 2, 1937 (P.L. 1198, No. 308),
known as the Labor Anti-Injunction Act, or to any constitutionally
protected activity.” 1993, June 23, P.L. 124, No. 28, § 1, imd. effective
(emphasis added). Effective January of 2016, the statute was further
amended to reflect its current form, and omit the language regarding labor
disputes. 2015, Nov. 4, P.L. 224, No. 59, § 1, eff. 60 days [Jan. 4, 2016].




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defendant’s “lewd and non-political suggestions do not … have the protection

of the First Amendment.”6 Duncan, supra, 363 A.2d at 806.

       The following year, in Commonwealth v. Bender, 375 A.2d 354 (Pa.

Super. 1977) (en banc), the en banc Court vacated a defendant’s

harassment conviction, finding that his actions were “ostensibly protected by

both the United States and Pennsylvania Constitutions which guarantee

citizens the right to petition the government for a redress of grievances and

to speak freely.” Id. at 359. In that case, the defendant was convicted of

harassment after he lodged complaints against two police officers with the

Internal Affairs Division and the Mayor’s Service Office, based on his belief

they had mishandled his gun permit application. He continued to pursue the

complaints “even though he was repeatedly informed that the police officers

had followed appropriate procedures[.]”          Id. at 358.   In vacating the

conviction, the en banc panel commented:            “We should be extremely

reluctant to infer a criminal intent to harass solely from the filing of

complaints with appropriate government agencies and the making of

telephone calls during regular office hours lest we impermissibly chill a

citizen’s constitutional freedoms.” Id. at 359.

       In Commonwealth v. Wheaton, 598 A.2d 1017 (Pa. Super. 1991), a

panel of this Court once again vacated a defendant’s conviction of

____________________________________________


6
  As explained in footnote 5, supra, at the time of the defendant’s
conviction, the statute did not include the subsection (e) exemption.



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harassment. There, the defendant disputed a bill sent to him by the Water

Association.    See id. at 1018.        In doing so, he visited two of the water

trustees, one at a barber’s shop and the other at the trustee’s home, and

threatened to file a lawsuit if his water service was terminated.           See id.

Although the panel did not discuss the defendant’s actions in constitutional

terms, it did find that the defendant acted with a “legitimate purpose,” and

again cautioned trial courts from “finding that a criminal intent can be

inferred from making complaints.” Id. at 1020.

       Our research has uncovered only one published decision applying

subsection (e) to the facts of the case - Commonwealth v. Burlingame,

672 A.2d 813 (Pa. Super. 1996).                However, in that case, the defendants

were charged with harassment based on their conduct while picketing their

employer’s business during a labor dispute.               See id. at 814.   The trial

court granted the defendants’ motion for habeas corpus, concluding “since

[the defendants] were parties to a labor dispute at the time they engaged in

[the offensive] conduct, the provisions of section 2709(e) required dismissal

of the harassment charges.”7             Id.      The Commonwealth appealed the

dismissal of the charges, and a panel of this Court affirmed, holding:



____________________________________________


7
  As noted supra, at the time the Burlingame defendants were arrested,
subsection (e) of the harassment statute read as follows: “This section shall
not apply to conduct by a party to a labor dispute as defined in the act
of June 2, 1937 (P.L. 1198, No. 308), known as the Labor Anti-Injunction
(Footnote Continued Next Page)


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      Section 2709(e) provides, quite simply, that section 2709 of the
      Crimes Code, which defines the crime of harassment, does not
      apply to conduct by a party to a labor dispute as that term is
      defined by the Labor Anti–Injunction Act. Since it is beyond
      question that [the defendants’] conduct, however offensive,
      occurred during a labor dispute to which they were parties, it is
      shielded from prosecution under the harassment statute and the
      charges were properly dismissed.

Id. Therefore, while the panel found subsection (e) excused the defendant’s

conduct, it did not do so on the same grounds alleged herein.

      In the present case, the trial court concluded that Harmer’s actions

were not constitutionally protected. First, the court distinguished Wheaton

and Bender by noting that, in those decisions, “the conduct of the

appellants consisted of seeking redress to arguably legitimate grievances,

and doing so with restrained although repetitive actions.”       Trial Court

Opinion, 11/9/2016, at 12. The court explained:

      In this case had [Harmer] endeavored to redress her stated
      property ownership dispute via the means of continuing to file
      trespass complaints against her neighbors, or endeavored to
      continue to contact township authorities in regard to her
      grievance, she might have been afforded constitutional
      protection for those types of activities.

Id. However, the trial court found that the actions Harmer took to address

her property dispute were different in kind from those in the prior cases.

The court opined:


                       _______________________
(Footnote Continued)

Act, or to any constitutionally protected activity.” 1993, June 23, P.L. 124,
No. 28, § 1, imd. effective (emphasis added). See supra, n.5.




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               Here, [Harmer] chose to continue to verbally assault her
        neighbors at every opportunity. She repeatedly endeavored to
        engage them in verbal disputes, so much so that the police were
        constantly being called to the homes in an effort to keep the
        peace. This court could easily infer the intent to harass or annoy
        from the testimony of each Commonwealth witness, as to the
        pervasiveness of the conduct of [Harmer]. It was imminently
        clear to this [c]ourt that the intent of [Harmer] was to deny the
        victim Kidd family the quiet enjoyment of their home, and to
        continue to annoy the family even after receiving criminal
        citations, and after a hearing before a magistrate. It was also
        clear to the court, that the victim Kidd family was indeed
        harassed by the conduct of [Harmer], so much so that the Kidd
        family children were afraid to come out of the house when they
        saw [Harmer].

               The video evidence which this [c]ourt viewed left no
        room for doubt. In Duncan, [supra,] the Court said [“]we
        emphasize that a defendant’s acts must seriously offend the
        average person[.”]       This court found that [the] actions of
        [Harmer] would have seriously offended any reasonable person.
        It is this [court’s] determination that criminal conduct occurred,
        which was not entitled to any constitutional protection.

Id. at 12-13 (emphasis added).

        Our review of the record reveals ample support for the trial court’s

ruling. Although Harmer insists her actions were “motivated by” a property

dispute,8 she took no reasonable steps to resolve the conflict. Rather, she

repeatedly berated the Kidds and destroyed their property, even after being

ordered to refrain from having any contact with them by a magisterial

district justice. See N.T., 8/25/2016, at 10 (Harmer walked through Kidds’

flower bed); 13 (Harmer placed metal stakes along driveway and stared at

Mrs. Kidd the day after “no contact” order); 15-16 (Harmer removed
____________________________________________


8
    Harmer’s Brief at 7.



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rosebush from Kidds’ flowerbed); 23-24 (Harmer repeatedly yelled at Kidd

children “asking them to tell their mommy and daddy to give back her

bricks.”).    Moreover, the trial court had the unique opportunity to view

videotaped evidence of the encounters, which the court found “left no room

for doubt” that Harmer’s actions were not constitutionally protected by her

right to protect her property, her right to free speech, or her right to redress

grievances.      Trial Court Opinion, 11/9/2016, at 13.              Indeed, when

announcing its verdict, the court commented: “I think that [Harmer] went

way beyond just simply trying to protect constitutional rights. I think she

did it with a degree of subterfuge.”           N.T., 8/25/2016, at 58. Accordingly,

the evidence presented at trial was sufficient to establish Harmer, acting

with the intent to harass, annoy or alarm the Kidds, engaged in a course of

conduct, which served no legitimate purpose. See 18 Pa.C.S. § 2709(a)(3).

        Because we conclude the evidence was more than sufficient to support

the verdict, and the trial court did not err in concluding Harmer’s actions

were not “constitutionally protected activity,” 9 Harmer is entitled to no

relief.10
____________________________________________


9
    18 Pa.C.S. § 2709(e).
10
   We note Harmer raises several additional claims in the argument section
of her brief, arguing: (1) the harassment statute is unconstitutionally
vague; (2) “the absence of fundamental fairness fatally infected the trial[;]”
and (3) her conduct was “at most” a “de minimis infraction … not warranting
criminal sanctions[.]” Harmer’s Brief at 8, 9, 11. However, none of these
claims were included in her court-ordered Rule 1925(b) statement. See
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




                       _______________________
(Footnote Continued)

Concise Statement of Errors Complained of on Appeal, 10/11/2016.
Accordingly, they are waived on appeal. Commonwealth v. Diamond, 83
A.3d 119, 136 (Pa. 2013), cert. denied, 135 S.Ct. 145 (U.S. 2014).



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