J-S13018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :           IN THE SUPERIOR COURT OF
                                 :                PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    MANDY SUE STINE              :
                                 :
                  Appellant      :           No. 899 WDA 2017
                                 :

             Appeal from the Judgment of Sentence May 2, 2017
                 In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0001469-2016


BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 25, 2018

       Appellant, Mandy Sue Stine, appeals from the judgment of sentence

entered on May 2, 2017, in the Blair County Court of Common Pleas. 1

We affirm.

       The record reveals that in 2015, David Leonard began working as a

confidential informant (“CI”) for the Altoona Police Department. N.T., 2/9/17,

at 44.   As a CI, Mr. Leonard purchased controlled substances from drug

dealers, and police officers would then arrest those dealers. Id. Mr. Leonard’s

work as a CI directly led to Appellant’s arrest. Id. at 45.




1 While Appellant purports to appeal from the trial court’s order denying her
post-sentence motion, the appeal properly lies from the May 2, 2017 judgment
of sentence. Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa.
Super. 2001). We have corrected the caption accordingly.
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       On March 7, 2016, Appellant and Mr. Leonard were both seated in a

courtroom in the Blair County Courthouse in Hollidaysburg, Pennsylvania.

Appellant was in the courtroom as a result of Mr. Leonard’s work as a CI, and

Mr. Leonard was there as a defendant on a separate drug-related matter.

Appellant was seated behind Mr. Leonard. Mr. Leonard claimed that when

Appellant sat down behind him, she made threatening comments to him. N.T.,

2/9/17, at 26. Mr. Leonard testified that Appellant called him a snitch and

blamed him for her arrest. She told him that she knew where he lived, would

burn his house down, and intended to hurt him. Id. Mr. Leonard also testified

that after Appellant threatened him in the courtroom, she aggressively

followed him in her car back to Altoona. Id. at 31. Mr. Leonard stated that

during this pursuit, he applied the brakes suddenly to get behind Appellant’s

car, which enabled him to acquire Appellant’s license plate number and call

the police. Id.

       On August 19, 2016, the Commonwealth charged Appellant with making

terroristic threats, retaliation against a witness or victim, and harassment. 2

Following a jury trial, Appellant was found guilty of retaliation against a

witness or victim and not guilty of making terroristic threats. 3 Verdict, 2/9/17.

On May 2, 2017, the trial court sentenced Appellant to a term of one to twenty-




2   18 Pa.C.S. §§ 2706(a)(1), 4953(a), and 2709(a)(2), respectively.

3 The disposition of the summary offense of harassment is unclear from the
record.
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three months of incarceration for the retaliation conviction. Appellant filed a

timely post-sentence motion, which was denied on May 22, 2017, and on

June 8, 2017, Appellant filed a timely notice of appeal. On July 19, 2017, the

trial court directed Appellant to file and serve upon the court a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant filed a timely Pa.R.A.P. 1925(b) statement on July 28, 2017. The

trial court initially did not draft an opinion but rather provided a statement

asserting that it was relying upon the record.      Pa.R.A.P. 1925(a) Notice,

10/31/17.4

      On appeal, Appellant raises four issues for this Court’s consideration:

      I. Whether the trial court erred in finding sufficient evidence to
      support the verdict because the [C]omm[on]wealth’s evidence
      consisted of one to three adverse verbal statements followed by
      benign driving conduct that fails to get to the severity contained
      in Commonwealth v. Ostrosky, 909 A.2d 1224 (Pa. 2006).

      II. Whether the trial court erred in denying [Appellant’s] dismissal
      motion that the verdict was not supported by the weight of the
      evidence submitted at trial. Commonwealth v. Ostrosky, 909 A.2d
      1224 (Pa. 2006).

      III. Whether the trial court erred when the court denied a post
      sentence motion for a new trial where [Appellant] alleged a Brady
      v. Maryland violation because the investigating officer failed to
      recover easily available and material in-court video of the alleged
      incident. Brady, 373 U.S. 83 (1963).

      IV. Whether the trial court erred when it denied [Appellant’s]
      motion for a new trial alleging the verdict should also be set aside
      because Leonard was a “confidential informant” not a “witness”
      according to the plain language of the statute leading to the

4 On April 23, 2018, our Court remanded this matter to the trial court to draft
an opinion. The trial court filed its opinion on May 17, 2018.
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      conclusion that, by definition, there cannot be … sufficient or
      weighty evidence to sustain the verdict.

Appellant’s Brief at 7.

      Appellant first challenges the sufficiency of the evidence. Our standard

of review for 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. 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 applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder 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. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011)

(citation omitted). “A challenge to the sufficiency of the evidence is a question

of law, subject to plenary review.” Commonwealth v. Williams, 871 A.2d

254, 259 (Pa. Super. 2005) (citation omitted). “The Commonwealth need not

preclude every possibility of innocence or establish the defendant’s guilt to a

mathematical certainty.” Id. (citation omitted).

      As noted above, Appellant was found guilty of retaliation against a

witness. That crime is defined as follows:

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      (a) Offense defined.--A person commits an offense if he harms
      another by any unlawful act or engages in a course of conduct or
      repeatedly commits acts which threaten another in retaliation for
      anything lawfully done in the capacity of witness, victim or a party
      in a civil matter.

18 Pa.C.S. § 4953(a).

      Appellant avers that the evidence was insufficient to establish the crime

of retaliation, and she cites Commonwealth v. Ostrosky, 909 A.2d 1224

(Pa. 2006), as support for her argument.         Appellant’s Brief at 10.    In

Ostrosky, our Supreme Court concluded that a single threat, without actual

harm, does not constitute objective harm.      Ostrosky, 909 A.2d at 1233.

Therefore, a single threat does not satisfy the requirements for a conviction

of retaliation.   Id.   Appellant avers that here, there was at most a single

threat; thus, just as in Ostrosky, the evidence was insufficient to prove

retaliation. Appellant’s Brief at 11.

      While Appellant’s verbal threat to Mr. Leonard at the courthouse may

constitute a single threat, we must also consider Appellant’s motor-vehicle

pursuit of Mr. Leonard. Mr. Leonard testified that Appellant followed him and

was “right on [his] tail.” N.T., 2/9/17, at 30. Mr. Leonard further stated that

Appellant followed him, weaving in and out of traffic, and when he sped up,

she sped up, and when he slowed down, she slowed down.           Id. at 30-31.

Appellant’s pursuit of Mr. Leonard was aggressive, and it compelled him to

use evasive driving maneuvers to position his car behind Appellant’s. Id. at

31.   This evasive driving was done in order for Mr. Leonard to obtain


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Appellant’s license plate number.         Id.    Appellant’s behavior caused

Mr. Leonard to call 911 to report Appellant’s conduct, and Appellant continued

her antagonizing pursuit. Id. Mr. Leonard testified that Appellant’s behavior

worried him, and he feared for his safety and that of his family. Id.

      Viewing the evidence in the light most favorable to the Commonwealth,

we conclude that Appellant’s verbal threats to Mr. Leonard, coupled with the

motor-vehicle pursuit, constituted a course of conduct, i.e., Appellant’s

behavior was more than a single threat.         Ostrosky, 909 A.2d at 1232.

Therefore, we find that the evidence was sufficient to establish the crime of

retaliation.

      In her next issue on appeal, Appellant challenges the weight of the

evidence and claims that she is entitled to a new trial. We have held that “[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.”   Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super.

2016) (quoting Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).

Our Supreme Court has described the standard applied to a weight-of-the-

evidence claim as follows:

      The decision to grant or deny a motion for a new trial based upon
      a claim that the verdict is against the weight of the evidence is
      within the sound discretion of the trial court. Thus, “the function
      of an appellate court on appeal is to review the trial court’s
      exercise of discretion based upon a review of the record, rather
      than to consider de novo the underlying question of the weight of
      the evidence.” An appellate court may not overturn the trial

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      court’s decision unless the trial court “palpably abused its
      discretion in ruling on the weight claim.” Further, in reviewing a
      challenge to the weight of the evidence, a verdict will be
      overturned only if it is “so contrary to the evidence as to shock
      one’s sense of justice.”
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

omitted).   A trial court’s determination that a verdict was not against the

weight of the evidence is “[o]ne of the least assailable reasons” for denying a

new trial. Commonwealth v. Colon-Plaza, 136 A.3d 521, 529 (Pa. Super.

2016) (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A

verdict is against the weight of the evidence where “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. Lyons, 833 A.2d 245, 258 (Pa.

Super. 2003) (quoting Widmer, 744 A.2d at 751–752)). “[W]e do not reach

the underlying question of whether the verdict was, in fact, against the weight

of the evidence. . . . Instead, this Court determines whether the trial court

abused its discretion in reaching whatever decision it made on the motion[.]”

Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation

omitted).

      A challenge to the weight of the evidence must first be raised at the trial

level “(1) orally, on the record, at any time before sentencing; (2) by written

motion at any time before sentencing; or (3) in a post-sentence motion.”

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). Although

Appellant’s weight claim lacked specificity, we are satisfied that she preserved


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her challenge by: 1) raising the issue in a post-trial motion filed on April 26,

2017; 2) discussing the weight of the evidence at the sentencing hearing on

May 2, 2017 (N.T., 5/2/17, at 4); and 3) challenging the weight of the

evidence in her post-sentence motion filed on May 5, 2017. Nevertheless, we

conclude that there was no abuse of discretion in the trial court denying

Appellant’s motion for a new trial in the order filed on May 22, 2017.

      As discussed above, the evidence against Appellant amply established

her guilt of retaliation against Mr. Leonard.       Mr. Leonard testified that

Appellant verbally threatened him inside the courtroom and later engaged in

an aggressive automobile pursuit causing Mr. Leonard to fear for his safety.

N.T., 2/9/17, at 29-31. As the finder of fact, the jury was free to credit the

testimony as it saw fit, and it was free to believe all, part, or none of the

evidence, and to assess the credibility of the witnesses. Commonwealth v.

DeJesus, 860 A.2d 102, 107 (Pa. Super. 2004).            Indeed, the jury found

Mr. Leonard credible and convicted Appellant of the crime of retaliation.

Nothing in the jury’s verdict or the trial court’s denial of Appellant’s post-

sentence motion shocks our sense of justice, and we discern no abuse of

discretion in the trial court’s denial of Appellant’s post-sentence motion.

Accordingly, Appellant is due no relief on this claim.

      In her third issue, Appellant asserts that the trial court erred when it

denied her post-sentence motion for a new trial based on an alleged violation

of Brady v. Maryland, 373 U.S. 83 (1963). Appellant claims that one of the


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investigating officers failed to recover a video recording of the interaction

between Appellant and Mr. Leonard that occurred in the courtroom where

Appellant threatened Mr. Leonard. We conclude that this claim is meritless.

      In Brady, the Supreme Court of the United States held that “the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”

Commonwealth v. Adams, 177 A.3d 359, 363 n.10 (Pa. Super. 2017)

(internal citation omitted). Rule 573 of the Pennsylvania Rules of Criminal

Procedure was promulgated in response to the dictates of Brady.5

Commonwealth v. Melvin, 103 A.3d 1, 32 (Pa. Super. 2014) (citation

omitted). In order to succeed on a Brady claim, the defendant must show:

      (1) evidence was suppressed by the prosecution; (2) the
      evidence, whether exculpatory or impeaching, was favorable to
      the defendant; and (3) prejudice resulted. Commonwealth v.
      Daniels, 628 Pa. 193, 104 A.3d 267, 284 (2014), citing
      Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 30
      (2008). A Brady violation exists only where the suppressed
      evidence is material to guilt or punishment, i.e., where there is a
      reasonable probability that, had the evidence been disclosed, the
      result of the proceeding would have been different. Id. In
      determining whether a reasonable probability of a different
      outcome has been demonstrated, “the question is not whether the
      defendant would more likely than not have received a different
      verdict with the evidence, but whether in its absence he received
      a fair trial, understood as a trial resulting in a verdict worthy of
      confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct.
      1555, 131 L.Ed.2d 490 (1995). A “reasonable probability” of a

5 Pa.R.Crim.P. 573 provides, inter alia, that the Commonwealth has a duty to
disclose inculpatory and exculpatory evidence.
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      different result is shown when the government’s suppression of
      evidence “undermines confidence in the outcome of the trial.”
      United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87
      L.Ed.2d 481 (1985).
Commonwealth v. Cousar, 154 A.3d 287, 301 (Pa. 2017).

      In the case at bar, the record reflects that the officer who investigated

the charges against Appellant, Officer Mark Lingafelt, testified that during his

investigation, he did not know there was a camera in the courtroom. N.T.,

2/9/17, at 52. Therefore, the prosecution was not aware of the existence of

any recording from the courtroom, and nothing in Brady or in Pa.R.Crim.P.

573 requires the prosecution to produce evidence of which it is unaware. See

Commonwealth v. Boczkowski, 846 A.2d 75, 97 (Pa. 2004) (stating that

the Commonwealth does not violate Rule 573 when it fails to disclose to the

defense evidence that it does not possess and of which it is unaware).

      Moreover, even if the prosecution had been aware of the video

recording, Appellant cannot establish prejudice. Officer Lingafelt testified that

after he learned that recording equipment was present in the courtroom, he

subsequently determined that courtroom recordings are video only, and no

audio is recorded. N.T., 2/9/17, at 52. Because neither party disputes that

there was some interaction between Appellant and Mr. Leonard, a video

recording without audio would not have resulted in a different outcome at trial

because there would have been no evidence of the language Appellant used,

threatening or otherwise.



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      In her final claim of error, Appellant argues that the trial court erred

when it denied her motion for a new trial because Mr. Leonard was a

“confidential informant” not a “witness” under 18 Pa.C.S. § 4953, and thus,

he could not be a victim of retaliation. As this issue presents a question of

statutory interpretation, our scope of review is plenary and the standard of

review is de novo. Commonwealth v. Grove, 170 A.3d 1127, 1141 (Pa.

Super. 2017). The object of all statutory interpretation is to ascertain and

effectuate the intention of the General Assembly, and the best indication of

the legislature’s intent is the plain language of the statute. Id. at 1142. When

the words of a statute are clear and unambiguous, we may not go beyond the

plain meaning of the language of the statute under the pretext of pursuing its

spirit. Id. However, only when the words of the statute are ambiguous should

a reviewing court seek to ascertain the intent of the General Assembly through

considerations of the various factors found in 1 Pa.C.S. § 1921(c).         Id.

(citations omitted).

      Appellant suggests the term “confidential informant” is not a category

of potential victims under 18 Pa.C.S. § 4953.         Appellant’s Brief at 16.

Appellant then cites to a proposed amendment to Section 4953. Appellant

argues that this proposed amendment supports her assertion that CIs cannot

be victims of retaliation because they are not specifically enumerated in the

current version of Section 4953.




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       The proposed amendment provides as follows:

       (a) Offense defined.--A person commits an offense if he harms
       another by any unlawful act or engages in a course of conduct or
       repeatedly commits acts which threaten another in retaliation for
       anything lawfully done in the capacity of confidential informant,
       witness, victim or a party in a civil matter.
2015 Pennsylvania House Bill No. 793 (proposed amended language

underscored).     The proposed amendment adds the term “confidential

informant” but changes nothing else.       While the proposed amendment to

Section 4953 seeks to add CI as a specific category of victim, we cannot

conclude that under the current law, a CI cannot be a witness.

       For purposes of crimes involving victim and witness intimidation, which

are enumerated in 18 Pa.C.S. §§ 4951-4958, a witness is defined as follows:

       “Witness.” Any person having knowledge of the existence or
       nonexistence of facts or information relating to any crime,
       including but not limited to those who have reported facts or
       information to any law enforcement officer, prosecuting official,
       attorney representing a criminal defendant or judge, those who
       have been served with a subpoena issued under the authority of
       this State or any other state or of the United States, and those
       who have given written or oral testimony in any criminal matter;
       or who would be believed by any reasonable person to be an
       individual described in this definition.
18 Pa.C.S. § 4951.    We discern nothing ambiguous in the wording of this

statute.   Giving every word of the statute its plain meaning as we must, 6

Mr. Leonard satisfies every requirement for a “witness.”    Mr. Leonard had

knowledge of facts relating to Appellant committing a drug-related crime.



6   Grove, 170 A.3d at 1142; 1 Pa.C.S. § 1921.
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N.T., 2/9/17, at 24. We conclude that Mr. Leonard was a witness as defined

by the statute, and his additional or separate standing as a CI is immaterial.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2018




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