J-S60016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CYNTHIA BAKER SPANGLER                     :
                                               :
                       Appellant               :   No. 522 MDA 2018

            Appeal from the Judgment of Sentence February 27, 2018
       In the Court of Common Pleas of Centre County Criminal Division at
                         No(s): CP-14-SA-0000004-2018

BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 18, 2018

        Appellant Cynthia Baker Spangler appeals from the judgment of

sentence following a bench trial and her conviction for harassment.1 Appellant

contends that the trial court should have dismissed the charge, and she also

challenges the sufficiency and weight of the evidence. We affirm.

        We set forth the following as background.2 Appellant and Megan Shirey,

the victim, are neighbors.         Shirey testified about multiple incidents with



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*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. § 2709(a)(3).
2 We glean the facts from the trial transcript. We have construed the facts in
the light most favorable to the Commonwealth. See Commonwealth v.
Widmer, 744 A.2d 745, 751 (Pa. 2000) (stating, “[w]hen reviewing a
sufficiency claim the court is required to view the evidence in the light most
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Appellant. R.R. at 8a.3 The first such incident was in April of 2017, shortly

after Shirey moved in next door to Appellant’s home. Id. at 9a. Shirey arrived

home and let her dog out into her yard.          Id.      Appellant’s dogs barked

continuously at Shirey’s dog. Id.4 Appellant came over to introduce herself

to Shirey, “alluded” that their respective dogs were going to be problematic,

and asked if Shirey knew when she would let her dog out. Id. Shirey replied

that her dog would use her yard when she was home and hoped that

Appellant’s dogs would get used to Shirey’s dog. Id. Appellant responded

that she did not think so. Id. According to Shirey—who was then pregnant—

Appellant said “it would be a shame if that baby couldn’t sleep once it gets

here.” Id.

        Shirey also recounted another incident, date unknown, in which Shirey

was on her deck while her husband and dog were in the yard. Id. Shirey saw

Appellant outside, who then “flipped [her] off from [Appellant’s] deck.” Id.

Shirey stated that the source of tension between the two was because Shirey’s

dog “causes” Appellant’s dogs to bark. Id. At some point, Shirey had made

multiple complaints to the township about the noise from Appellant’s dogs.

Id.

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favorable to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.” (citation omitted)).
3   We cite to the reproduced record for the parties’ convenience.
4   Appellant testified she has five dogs. R.R. at 13a.


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      Shirey also testified about incidents that occurred on September 25,

2017, and on November 20, 2017. Id. at 7a-8a. In September, Shirey had

taken her dog outside to the backyard of her home. Id. at 8a. Shirey’s dog

chose to lie down in the sun and Shirey flipped the dog back onto his feet. Id.

According to Shirey, Appellant saw this from her porch, yelled that Shirey was

abusing her dog, said she was going to call the police, and called Shirey “an

asshole.” Id. Shirey later contacted the police, who arrived and told Appellant

not to speak with Shirey or enter Shirey’s property.       Id. at 6a (citation

discussing the September 2017 incident).

      On November 20, 2017, Shirey left work, picked up her then four-

month-old son from daycare, and drove home.         Id. at 7a.   When Shirey

arrived, she parked her car in the driveway, and went inside with her son. Id.

She then opened their basement door and both she and the family dog went

outside into the fenced backyard. Id. Within a minute of Shirey’s walking

outside, one of Appellant’s dogs began barking, which, according to Shirey,

was “typical.” Id. Shirey’s dog was not barking. Id. at 8a.

      The barking prompted Shirey to reach into her pocket for her phone so

she could video record the barking. Id. at 7a-8a. She explained that the

township had advised her that she needed to provide a video of the barking

before the township could cite anyone for violating a noise ordinance. Id.

Upon realizing her phone was not in her pocket and was in her car, she exited




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the backyard to proceed to her driveway, where her car was parked. Id. at

8a. Shirey saw Appellant on her driveway with her cell phone out. Id.

      Shirey yelled at Appellant to leave her property and that she would

contact the police because Appellant was violating the September police “stay

away” order. Id. Appellant, according to Shirey, responded, “I know what

you’re doing little girl. We don’t do that to our babies.” Id. Appellant was

also pointing her phone at the license plate area of Shirey’s car. Id. Shirey

repeatedly told Appellant to leave her property, and Appellant walked back to

the road and continued to yell at Shirey. Id. Another neighbor witnessed the

exchange and told Appellant to leave Shirey alone. Id. Shirey acknowledged

there were no incidents between September and November. Id. at 10a.

      On February 27, 2018, the court held a summary trial at which the above

facts were presented. Appellant testified and, generally, denied that her dogs

barked in the manner described by Shirey. Id. at 13a. Appellant countered

that her actions in September of 2017 were motivated by a concern for

Shirey’s dog given the hot weather that day. Id. at 14a. Appellant also denied

cursing Shirey. Id. With respect to the November 2017 incident, Appellant

stated that she passed by Shirey’s home to investigate what had caused

Appellant’s dogs to bark.   Id.   While Appellant was on Shirey’s driveway,

according to Appellant, Shirey exited her home to curse Appellant.        Id.

Appellant denied having any intent to harass Shirey. Id. at 15a.




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       The court found Appellant guilty of the above-mentioned crimes and

reimposed the fines and costs previously imposed by the magisterial district

judge.     Appellant filed a post-sentence motion.           Appellant’s motion

acknowledged that Pa.R.Crim.P. 720(d) bars filing a post-sentence motion

when, as here, Appellant appealed from a summary conviction after a trial de

novo. See Pa.R.Crim.P. 720(d); R.R. at 20a. Appellant’s motion explained

that out of an abundance of caution, she was raising a claim challenging the

weight of the evidence. R.R. at 20a. Before the court ruled on Appellant’s

motion, Appellant filed a timely notice of appeal on March 28, 2018. On March

29, 2018, the court issued an order stating it could not rule on Appellant’s

post-sentence motion because she had filed an appeal. Order, 3/29/18.

       Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement.5

The trial court filed a Rule 1925(a) opinion, which addressed Appellant’s issues

and held, among other things, that Appellant’s weight claim lacked merit. Trial

Ct. Op., 4/19/18, at 2 (holding that verdict did not shock the court’s sense of

justice because it found Appellant’s testimony not credible).

       Appellant raises the following issues in her brief:



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5 Appellant’s Rule 1925(b) statement was not included in the certified record
transmitted to this Court, but was part of the reproduced record. No party
has challenged the statement’s accuracy. See generally Pa.R.A.P. 1921 cmt.
(stating, “where the accuracy of a pertinent document is undisputed, the Court
could consider that document if it was in the Reproduced Record, even though
it was not in the record that had been transmitted to the Court”).


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      1. Whether the alleged conduct of [Appellant] should be dismissed
      for being de minim[i]s, as defined in 18 Pa.C.S.A. § 312, as it did
      not actually cause or threaten the harm or evil sought to be
      prevented by the law defining the offense and/or did so only to an
      extent too trivial to warrant the condemnation of conviction?

      2. Whether the evidence presented was insufficient to support
      [Appellant’s] conviction for 18 Pa.C.S.A. § 2709(a)(3)
      (Harassment – Course of Conduct) with respect to each element
      of the offense?

      3. Whether the issue of the verdict being against the weight of
      the evidence can be first raised in a direct appeal to the Superior
      Court following a trial de novo because the Rules of Criminal
      Procedure state that there shall be no post-sentence motions in
      summary case appeals following a trial de novo in the court of
      common pleas, such that it would be procedurally impossible for
      [Appellant] to raise this issue at any other time?

      4. Whether [Appellant’s] conviction for 18 Pa.C.S.A. § 2709(a)(3)
      (Harassment – Course of Conduct) was against the weight of the
      evidence, was manifestly unreasonable, and was so contrary to
      the evidence as to shock one’s sense of justice since certain facts
      were so clearly of greater weight that to ignore them or to give
      them equal weight with all the other facts is to deny justice
      including, but not limited to, the fact that the [victim’s] testimony
      incontrovertibility [sic] established that [Appellant’s] actions
      served a legitimate purpose.

Appellant’s Brief at 6 (some capitalization omitted and issues reordered to

facilitate disposition).

      With respect to Appellant’s first issue, she contends that the trial court

abused its discretion by not dismissing the charge. Id. at 28. According to

Appellant, in Commonwealth v. Houck, 335 A.2d 389, 391 (Pa. Super.

1975), the Court affirmed the trial court’s decision to dismiss a charge of

harassment because it was de minimis under 18 Pa.C.S. § 312. Id. Appellant

argues that the facts of Houck, which we discuss below, are analogous to the

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underlying facts, and thus, the trial court should have dismissed the charge

against her. The Commonwealth countered that Appellant waived the issue

by not raising it before the trial court. Commonwealth’s Brief at 13-14.

      The standard of review for evaluating whether a trial court dismissed

charges    properly    under   Section   312   is   an   abuse   of   discretion.

Commonwealth v. Przybyla, 722 A.2d 183, 184 (Pa. Super. 1998). Section

312, in relevant part, follows:

      (a) General rule.—The court shall dismiss a prosecution if,
      having regard to the nature of the conduct charged to constitute
      an offense and the nature of the attendant circumstances, it finds
      that the conduct of the defendant:

          (1) was within a customary license or tolerance, neither
          expressly negatived by the person whose interest was infringed
          nor inconsistent with the purpose of the law defining the
          offense;

          (2) did not actually cause or threaten the harm or evil sought
          to be prevented by the law defining the offense or did so only
          to an extent too trivial to warrant the condemnation of
          conviction; or

          (3) presents such other extenuations that it cannot reasonably
          be regarded as envisaged by the General Assembly or other
          authority in forbidding the offense.

18 Pa.C.S. § 312(a).

      In short, “the language of the statute requires the trial court to dismiss

the prosecution on its own accord, upon a determination that the defendant’s

conduct involved de minim[i]s infractions.” Commonwealth v. Gemelli, 474

A.2d 294, 300 (Pa. Super. 1984) (citation omitted). “[N]either the statute

nor case law requires a defendant to preserve the issue of de minim[i]s

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infractions by means of inclusion in an omnibus motion.” Id. “An offense

alleged to be de minimis in nature should not be dismissed where either harm

to the victim or society in fact occurs.” Commonwealth v. Lutes, 793 A.2d

949, 963 (Pa. Super. 2002) (citation omitted).

      In Houck, cited by Appellant, the defendant and victim were friends for

years.   Houck, 335 A.2d at 391.       Their friendship broke down, and the

defendant was charged with harassing the victim by telephone and, during

those calls, saying he was “lower than dirt” and “morally rotten.” Houck, 335

A.2d at 390. The trial court dismissed the charge, reasoning the defendant’s

actions did not violate the then-existing harassment statute and even if they

did, the actions were “too trivial to warrant a conviction.” Id. Thus, the court

dismissed the indictment under Section 312, and the Commonwealth

appealed.   Id. at 389-90.     The Houck Court affirmed, albeit with little

reasoning other than it agreed “with the propriety of the trial judge’s action in

dismissing the case.” Id. at 391.

      Turning to the merits, we initially disagree with the Commonwealth that

Appellant waived the issue.     See generally Gemelli, 474 A.2d at 300.

Indeed, the Gemelli Court pointed out that the trial court should act of its

own accord per the statute. See id. On the merits, unlike the facts in Houck,

there were no telephone calls. Cf. Houck, 335 A.2d at 390. Rather, as set

forth above, Appellant was physically present on Shirey’s property and

verbally harassing her, which harmed Shirey. See Lutes, 793 A.2d at 963.


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Given this record, Appellant has not established that the trial court abused its

discretion by not dismissing the charges as de minimis. See Przybyla, 722

A.2d at 184.

      We next address Appellant’s sufficiency challenge to Section 2709(a)(3).

Appellant contends the Commonwealth failed to establish all three elements.

First, Appellant argues that the September and November incidents do not

rise to the level of a “course of conduct.”     Appellant’s Brief at 15.    She

acknowledges Shirey’s testimony about several additional incidents, but

maintains they were unrelated, trivial, and of little weight.   Id. at 17 n.1.

Second, Appellant asserts that her “name-calling” of Shirey should not be

considered “lewd, lascivious, threatening or obscene words.”         Id. at 18

(quoting 18 Pa.C.S. § 2709(f)). She claims that the trial court’s finding that

she received multiple warnings is not supported by the record.       Id. at 19.

Third, Appellant argues her actions had legitimate purpose, which, as she had

testified, were to inform Shirey that she was abusing her dog, a criminal

offense. Id. at 20. As for the November 2017 incident, Appellant claims that

she was legitimately concerned that Shirey had left her child in Shirey’s car.

Id. at 22.

      The standard of review for a challenge to the sufficiency of evidence

follows:

      A claim challenging the sufficiency of the evidence presents a
      question of law. We must determine whether the evidence is
      sufficient to prove every element of the crime beyond a
      reasonable doubt. We must view evidence in the light most

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      favorable to the Commonwealth as the verdict winner, and accept
      as true all evidence and all reasonable inferences therefrom upon
      which, if believed, the fact finder properly could have based its
      verdict.

Commonwealth v. Arcelay, 190 A.3d 609, 617 (Pa. Super. 2018) (citation

omitted).

      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[.]

                                  *     *      *

      (f) Definitions.—As used in this section, the following words and
      phrases shall have the meanings given to them in this subsection:

                                  *     *      *

      “Course of conduct.” A pattern of actions composed of more than
      one act over a period of time, however short, evidencing a
      continuity of conduct.       The term includes lewd, lascivious,
      threatening or obscene words, language, drawings, caricatures or
      actions, either in person or anonymously. 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(a)(3), (f). It is well-settled that the term “includes” is a

term of enlargement, and not limitation, in construing statutory language.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 963 (Pa. Super. 2011) (per

curiam).


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      In Commonwealth v. Tedesco, 550 A.2d 796 (Pa. Super. 1988), this

Court construed the term “course of conduct” as follows.

      [T]here must be evidence of a repetition of the offensive
      conduct.     In interpreting the aforegoing, this Court, in
      Commonwealth v. Schnabel, 236 Pa. Super. 280, 344 A.2d 896
      (1975), held that the Commonwealth failed to establish that
      appellant-lessor engaged in a “course of conduct” of harassment
      by the single act of cutting the complainant-lessee’s water hose.
      In so doing, it is important to note that the Schnabel Court
      embraced the definition that course of conduct is more than an
      isolated verbal or physical act. It is a pattern of conduct composed
      of same or similar acts repeated over a period of time, however
      short, which establishes a continuity of purpose in the mind of the
      actor. Such definition undermines the [defendant’s] contention
      that the reviewing court is precluded from examining the
      testimony elicited regarding matters that occurred prior to . . . the
      date of the complained of conduct.

Id. at 799-800 (emphases in original, some citations and internal quotation

marks omitted).

      After careful consideration of the parties’ briefs, the record, and the trial

court’s opinion, we affirm on the basis of the trial court’s reasoning. See Trial

Ct. Op. at 3-4. Further, even assuming Appellant’s name-calling did not fall

within the category of “lewd, lascivious, threatening or obscene words,”

section 2709’s use of the term “includes” means that it did not criminalize only

threatening words.    See Braun, 24 A.3d at 963.         Section 2709(f) forbids

threatening actions, as well, such as Appellant’s. See 18 Pa.C.S. § 2709(f).

Finally, it was for the court, as fact-finder, to determine whether Appellant’s

actions had a legitimate purpose, and the trial court did not find Appellant’s

testimony credible. See Trial Ct. Op. at 3-4. Having viewed the record in the


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light most favorable to the Commonwealth, we perceive no error of law. See

Arcelay, 190 A.3d at 617.

       Appellant lastly contends that her challenge to the weight of the

evidence was properly preserved for appellate review. Appellant’s Brief at

13.6 On the merits, Appellant challenges the trial court’s categorization of her

testimony as inconsistent. Id. at 25. Appellant maintains that her testimony

corroborated her intent not to harass victim.       Id.   Appellant argues that

Shirey’s testimony verifies that Appellant’s statements were made out of

concern for the victim’s dog and not to harass. Id. at 25-27.

       With respect to a challenge to the weight of the evidence, we set forth

the following as background:

       Ordinarily, a challenge to the weight of the evidence is waived
       unless it is presented in the first instance to the trial court.
       Preservation of this type of claim normally takes the form of a
       post-sentence motion. However, a defendant convicted of a
       summary offense is precluded from filing any post-sentence
       motions. Thus, [the defendant] had no opportunity to preserve
       his weight of the evidence argument prior to filing his Statement
       of Matters Complained of on Appeal. It would be unjust to deprive
       [the defendant] of the right to raise this issue on the grounds that
       he failed to file a motion he was not entitled to file. . . . Because
       [the defendant’s] challenge to the weight of the evidence has been
       considered in the first instance by the trial court, we decline to
       find waiver. . . .

       A true “weight of the evidence” claim contends the verdict is a
       product of speculation or conjecture. Such a claim requires a new
       trial only when the verdict is so contrary to the evidence as to

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6 The Commonwealth agrees with Appellant that she preserved her weight
claim. Commonwealth’s Brief at 7.


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      shock one’s sense of justice. A decision regarding the weight of
      the evidence is within the sound discretion of the trial judge whose
      decision will not be reversed on appeal absent an abuse of that
      discretion.

Commonwealth v. Dougherty, 679 A.2d 779, 784-85 (Pa. Super. 1996)

(citations omitted).

      Initially, we agree with the trial court that Appellant preserved her

challenge to the weight of the evidence. See id.; accord Trial Ct. Op. at 1.

After careful review of the record, the parties’ briefs, and the trial court’s

rationale, we discern no abuse of discretion by the trial court. See Trial Ct.

Op. at 2; Dougherty, 679 A.2d at 784-85. The trial court noted that Appellant

expressly disregarded a police instruction to stay off of Shirey’s property. As

set forth above, Appellant’s statements to Shirey did not, in the trial court’s

view, support a concern about the victim’s dog. Accordingly, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.

      Judge Shogan joins the memorandum.

      Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2018




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