J-S61027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    SELVIN PURNELL                             :
                                               :   No. 3736 EDA 2015
                       Appellant

            Appeal from the Judgment of Sentence December 4, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0013087-2014,
                            CP-51-CR-0013385-2014


BEFORE:      LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                            FILED NOVEMBER 21, 2017

        Appellant, Selvin Purnell, appeals from the judgment of sentence of an

aggregate two to four years of incarceration followed by four years of

probation, imposed December 4, 2015, following a bench trial resulting in his

conviction for reckless burning, possession of an instrument of crime, criminal

mischief, and harassment.1 We affirm.

        The facts and procedural history are as follows.       Appellant had an

intimate relationship with Ms. Burinth Keo that lasted more than ten years.

On August 13, 2014, around 7:15 p.m., Appellant visited the home of Ms.

Keo. Notes of Testimony (N.T.), 9/17/2015, at 25. Appellant’s nine-year-old

daughter came to the door and did not want to see her father. Id. at 25-26.

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1
    18 Pa.C.S. §§ 3301(d)(2), 907(a), 3304(a)(4), and 2709(a)(4).


*    Retired Senior Judge assigned to the Superior Court.
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Ms. Keo shut the door and returned to what she was doing.             Id. at 26.

Appellant continued to ring the doorbell, which Ms. Keo and her daughter

ignored. Id. After a few minutes, Appellant went from the front door to the

back door. Ms. Keo watched Appellant from a window in her kitchen. She

saw Appellant grab “circular paper,” light it on fire with a lighter, pull a

trashcan next to the grandmother’s minivan, and put the burning paper in the

trashcan. Id. at 27. The trashcan was less than a foot away from the gas

tank of the car. Id. at 28. Appellant also leaned a couch cushion from the

neighbor’s yard against the car.         Id. Ms. Keo called 9-1-1 and did not go

outside, although Appellant looked directly at her and walked away from the

flames coming from the trashcan. Id. at 27-28.

       Ms. Keo’s sister’s girlfriend extinguished the fire with a garden hose

shortly before the police arrived. Id. at 31-32. Ms. Keo went to the police

station to make a statement. Id. at 33. She saw Appellant standing outside

the station. Id. at 34. Appellant was identified to authorities. Id. Appellant

was arrested, and law enforcement recovered a lighter from his person. Id.

at 66-72.     Appellant was charged with three counts of arson, recklessly

endangering another person (REAP), criminal mischief, harassment, causing

catastrophe, possession an instrument of crime, and reckless burning.2

       On August 18, 2014, Ms. Keo obtained a temporary Protection from

Abuse (PFA) order against Appellant. Id. at 35-36. Appellant was served with

____________________________________________


2
    Docket No. CP-51-CR-0013087-2014.

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the order while in custody. Id. at 36.

       On November 3, 2014, Appellant sent Ms. Keo a letter from prison

containing rude, threatening language. Id. at 40.       On November 14, 2014,

Appellant was arrested and charged with intimidation of a witness, contempt

for violating the PFA order, and harassment.3 At trial, the letter was admitted

into evidence; Ms. Keo authenticated Appellant’s handwriting and signature.

Id. at 39.

       In September 2015, Appellant was found guilty of reckless burning,

possession of an instrument of crime, criminal mischief, and harassment

(misdemeanor).       Appellant was found not guilty of intimidation, contempt,

arson, REAP, harassment (summary offense), or causing catastrophe.

Appellant was sentenced as described above on December 4, 2015.

       On December 11, 2015, Appellant pro se timely filed a notice of appeal.

Counsel was appointed. Thereafter, counsel timely filed a Pa.R.A.P. 1925(b)

statement. On October 14, 2016, the trial court issued a responsive opinion.

       On appeal, Appellant raises the following two issues:

       1.    Did the trial court err when it found that there was sufficient
       evidence to prove, beyond a reasonable doubt, that Appellant []
       was guilty of the criminal offense of reckless burning o[r]
       exploding (F3)?

       2.    Did the trial court err when it found that there was sufficient
       evidence to prove, beyond a reasonable doubt, that Appellant []
       was guilty of the criminal offense of harassment (M3)?

Appellant’s Br. at 2.
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3
    Docket No. CP-51-CR-0013385-2014.

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      Appellant challenges the sufficiency of the evidence to sustain his

convictions for reckless burning and harassment. Our standard of review is

as follows:

      The standard we apply in reviewing the sufficiency of 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 factfinder 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 that of 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 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. Lambert, 795 A.2d 1010, 1014–15 (Pa. Super. 2002)

(internal citations and quotation marks omitted). Viewing all of the evidence

and any inferences drawn therefrom in the light most favorable to the

Commonwealth as verdict winner, this Court “must determine simply whether

the evidence believed by the fact-finder was sufficient to support the verdict.”

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007) (citation

omitted).




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      First, Appellant contends that the evidence was insufficient to establish

that he possessed the requisite mens rea to commit the reckless burning.

Appellant's Br. at 11.

      The elements of reckless burning are provided by statute:

      (d) Reckless burning or exploding.-- A person commits a
      felony of the third degree if he intentionally starts a fire or causes
      an explosion, or if he aids, counsels, pays or agrees to pay another
      to cause a fire or explosion, whether on his own property or on
      that of another, and thereby recklessly:

      (1) places an uninhabited building or unoccupied structure of
      another in danger of damage or destruction; or

      (2) places any personal property of another having a value that
      exceeds $5,000 or if the property is an automobile, airplane,
      motorcycle, motorboat or other motor-propelled vehicle in danger
      of damage or destruction.

18 Pa.C.S. § 3301(d).

      A person acts recklessly with respect to a material element of an
      offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor's conduct and
      the circumstances known to him, its disregard involves a gross
      deviation from the standard of conduct that a reasonable person
      would observe in the actor's situation.

18 Pa.C.S. § 302(b)(3). “The necessary knowledge or recklessness may be

demonstrated by circumstantial evidence.” Commonwealth v. Hogan, 468

A.2d 493, 496 (Pa. Super. 1983).

      In this case, Appellant argues that he did not consciously disregard a

substantial and unjustifiable risk to a minivan parked in Ms. Keo’s backyard.



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Appellant's Br. at 12. Rather, according to Appellant, his state of mind was

“highly agitated” because his ex-girlfriend and daughter were not permitting

him to see them. Id. at 13-14. Thus, Appellant concludes, his actions were

less culpable, and the evidence was insufficient to establish reckless burning.

      If the evidence of criminal intent (here, conscious disregard of a risk to

property or automobile) is sufficiently established, “it cannot be negated by

establishing that a second intent existed in the mind of the actor.”

Commonwealth v. Sinnott, 30 A.3d 1105, 1110 (Pa. 2011) (noting that

“[h]uman beings may act with a single, exclusive motive[, or] they may act

for multiple reasons”). “The proper question is not whether the defendant's

contentions are supported by the record, but whether the verdict is so

supported.” Id. It is not our function to re-weigh the evidence believed by

the factfinder, and this Court will not “substitute its judgment for that of the

fact-finder[.]” Id. (citing Ratsamy, 934 A.2d at 1235-36).

      Here, the trial court found the testimony of Ms. Keo and the fire

investigator more credible than Appellant’s.          Trial Ct. Op. (“TCO”),

10/14/2016, at 6.      Ms. Keo testified that Appellant intentionally lit a

newspaper on fire, put it into a trashcan, and moved the trashcan within

inches of the gas tank of the minivan. Id. After Appellant added more items

to the flames in the trashcan, he walked away as the fire burned. Id. The

fire investigator, Lieutenant Robert Crowe, determined the origin and cause

of the fire.   According to Lieutenant Crowe, the fire was “incendiary and


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purposefully set with an open flame device.” Id. at 3. The Lieutenant noted

that cushions caught on fire in the trashcan “within inches of the minivan.”

Id. Further, he testified credibly that there was already scorching on the rear

wheel, which was next to the gas tank, and concluded that if the fire had not

been extinguished, then the vehicle would have caught fire, perhaps

endangering the dwelling as well. Id. (citing N.T., 9/17/2016, 31-32; N.T.,

9/30/2016, 14-18).

      Based on this evidence, it was reasonable for the factfinder to infer that

Appellant acted recklessly beyond a reasonable doubt. By intentionally setting

the fire in a trash can next to a minivan, adding couch cushions to fuel the

fire, and walking away, Appellant placed property in danger of destruction.

See 18 Pa.C.S. § 3301(d)(2). Appellant’s acts were sufficiently reckless, as

he consciously disregarded a substantial risk to the minivan by walking away

from the fire he set. Id. at § 302(b). Accordingly, the evidence was sufficient

to support the verdict. See Ratsamy, supra.

      Second, Appellant contends that the evidence was insufficient to support

his conviction for harassment.      The statute under which Appellant was

convicted states the following: “A person commits harassment when, with

intent to harass, annoy or alarm another, the person: … (4) communicates to

or about such other person any lewd, lascivious, threatening or obscene

words, language, drawings or caricatures[.]” 18 Pa.C.S. § 2709(a)(4). “An

intent to harass may be inferred from the totality of the circumstances.”


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Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (citation

omitted).

      In his brief, Appellant challenges the basis for the harassment charge

and claims he lacked the requisite mental state to complete the crime.

However, Appellant did not preserve the requisite mental state issue in his

1925(b) statement. Appellant’s 1925(b) merely states: “there was insufficient

evidence adduced at trial by the Commonwealth to prove, beyond a

reasonable doubt, that [Appellant] communicated to Burinth Keo ‘any lewd,

lascivious, threatening or obscene words, language, drawings or caricatures.’”

See Appellant’s 1925(b) Statement, 7/13/2016, at 2 (quoting 18 Pa.C.S. §

2709(a)(4)).

      “[I]n order to preserve their claims for appellate review,
      [a]ppellants must comply whenever the trial court orders them to
      file a Statement of Matters Complained of on Appeal pursuant to
      Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b)
      statement will be deemed waived.”

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). According to the

mandate of Lord and its progeny, we limit our discussion to Appellant’s

challenge to the sufficiency of the evidence that was preserved in Appellant’s

1925(b) statement.

      Appellant contends that there is no evidence that he communicated to

Ms. Keo in “lewd, lascivious, threatening or obscene” words and language. 18

Pa.C.S. § 2709(a)(4).    However, contrary to his contention, a letter that

Appellant sent to Ms. Keo from prison was admitted into evidence. See N.T.

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at 39. The letter was dated October 30, 2014. At that time, a PFA order

forbidding Appellant from contacting Ms. Keo was in effect. As quoted in the

trial court’s opinion, Appellant’s letter stated:

       Why do you have the Philadelphia Court System on my ass: What
       are you[] trying to do? Have [Department of Homeland Security
       (DHS)] take our daughter away? I don’t know why you’re showing
       up to court…. You do not want me to get on the stand. I will show
       proof that we just slept in the bed together and I spen[t] the night
       over in June and July. We f[*****] even in your asshole. I will
       say that, just like that.

Trial Ct. Op., 10/14/2016, 4 (quoting Commonwealth Ex. 5).4

       The language of this letter clearly communicated “lewd, lascivious,

threatening or obscene” words and language to Ms. Keo in several ways.             18

Pa.C.S. § 2709(a)(4). Appellant threatens that DHS will take their daughter;

threatens    to   communicate       about      Ms.   Keo;   uses   obscene   language;

communicates with an intent to alarm Ms. Keo; and seeks to stop her from

testifying in a court proceeding.

       In our view, Appellant violated the plain and ordinary meaning of Section

2709 using such threats, profanity, and sexual references.              Furthermore,

Appellant knew he was not allowed to contact Ms. Keo under the terms of the

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4
  In reviewing this claim, the trial court found that the average person applying
community standards would find that the letter constitutes lewd and/or
obscene content because it appeals to the prurient interest. See TCO, at 7
(citing Commonwealth v. Bond, 504 A.2d 869, 875 (Pa. Super. 1986)
(referring to definitions of “obscene” and “sexual conduct” under 18 Pa.C.S. §
5903(b)’s prohibition of “obscene and other sexual materials and
performances”). The trial court reasoned that Section 5903’s definitions were
helpful for determining that the sexual language of Appellant’s letter was lewd
and obscene within Section 2709.

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PFA order.    Accordingly, the evidence was sufficient for the factfinder to

conclude that Appellant communicated a threat and lewd sentiments to

support his conviction for harassment. See Cox, 72 A.3d at 722.

     Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




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