J-S60026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEWIS T. WATKINS                           :
                                               :
                       Appellant               :   No. 340 MDA 2018

          Appeal from the Judgment of Sentence September 19, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0006151-2016

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

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 06, 2018

        Appellant Lewis T. Watkins appeals from the judgment of sentence of

three to ten years’ incarceration following a jury trial and convictions for

stalking1 and terroristic threats.2 He challenges the trial court’s decision to

impose consecutive sentences in the aggravated range because of Appellant’s

alleged statements to a different judge regarding unrelated charges for which

he was acquitted. We hold Appellant has failed to preserve his challenge for

appellate review and affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. § 2709.1(a)(1).
2   18 Pa.C.S. § 2706(a)(3).
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         We glean the facts from the record.3     Briefly, on April 17, 2012,

Appellant was employed at Alcoa4 when he was involved in an accident. N.T.

Trial, 6/26/17, at 77. Alcoa tested Appellant for drugs, and he tested positive

for marijuana and cocaine. Id. As a result, Alcoa sent Appellant to a pre-paid

drug rehabilitation facility. Id. at 78. As a condition of entering the drug

rehabilitation facility, Appellant signed a release that prevented the facility

from disclosing copies of Appellant’s laboratory results, including urine tests,

to Alcoa. Id. at 79, 85-86. The facility, however, expelled Appellant on June

20, 2012, because he failed to comply with the requirements for treatment.

Id. at 79-80, 83. The facility advised Alcoa that Appellant missed several

treatment sessions, exhibited signs of intoxication, and had two positive urine

tests. Id. at 81-82. As a result, Alcoa fired Appellant on June 20, 2012. Id.

at 84.

         Subsequently, Appellant contacted Alcoa and requested copies of his

personnel and medical file, as well as copies of the laboratory results. Id. at

86.   Alcoa provided Appellant’s personnel and medical file but because of

Appellant’s signed release, it never possessed the laboratory results. Id. at

86, 88-89.

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3We state the facts in the light most favorable to the Commonwealth, as the
verdict-winner. See generally Commonwealth v. Widmer, 744 A.2d 745,
751 (Pa. 2000).
4 We acknowledge that Alcoa was split into two companies in 2016.           For
simplicity’s sake, we just refer to the employer as Alcoa.


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      In 2015, the police charged Appellant with stalking Thomas Holbert, one

of Alcoa’s human resource managers. Id. at 99, 102. A trial was held on

September 26th and 27th, 2016, and Appellant was found not guilty. Id. at

102. At that particular trial, which was not the underlying trial, Holbert had

testified that Alcoa did not possess the laboratory results Appellant had been

requesting. Id.

      Immediately following the not-guilty verdict in September of 2016,

Appellant began leaving numerous voicemails on Holbert’s work mobile phone

demanding Appellant’s full personnel file, including the laboratory results. Id.

at 103-06. Over time, Appellant’s voicemails became increasingly belligerent

and intimidating, and they included threats to personally appear at Holbert’s

home and workplace to obtain his personnel file and advice to Holbert about

how to improve the parking of his car at work. Id. at 108-09, 112, 118, 120.

While Holbert and his family were watching a Pittsburgh Steelers football

game, Appellant left a voicemail specifically mentioning that game, which

frightened Holbert. Id. at 112-13, 115. The numerous voicemails caused

Holbert to change his phone number, install a burglar alarm, close his blinds,

and alter his daily routine. Id. at 115.

      Also in September and October of 2016, Appellant began leaving

“intimidating” voicemails to Tracey Hustad, one of Alcoa’s human resources

directors, requesting Alcoa to provide the laboratory results. Id. at 89-93,

95. Hustad consistently responded that Alcoa could not produce the results


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because it never had them.       Id. at 86.    We add that all voicemails were

forwarded to Alcoa security.

      Brian Leadbetter, chief security officer for Alcoa, similarly testified at the

June 2017 trial that he informed Appellant that Alcoa did not have the

laboratory reports at issue. Id. at 126. On October 10, 2016, after verifying

Appellant’s address and email address, Alcoa sent a cease-and-desist letter

meticulously detailing Appellant’s behavior, enclosing another copy of

Appellant’s personnel and medical files, and again denying any possession of

any laboratory test results. Id. at 134-36. Alcoa sent the files via FedEx, but

Appellant refused to sign and receive the package. Id. at 140. Alcoa reported

Appellant’s activities to the police, and the police arrested Appellant on

October 24, 2016. Id. at 146-47.

      The above facts were presented at Appellant’s June 2017 jury trial. After

the Commonwealth rested, the trial court advised Appellant of his right to

testify. Id. at 150. Appellant subsequently testified, generally disputing the

facts presented by the Commonwealth.

      Appellant rested, and the jury found him guilty of the above-mentioned

crimes. Following a pre-sentence investigation, the court held a sentencing

hearing, at which the court said, in pertinent part:

      Being the Judge who presided over the jury trial in this, I am quite
      familiar with all of the fact and the positions taken by [Appellant]
      with respect to his actions. And one of the things that sticks out
      to me is right after his acquittal in 2016 [of stalking Holbert], an
      admonishment from [that trial judge] following that trial that you
      can’t be doing this stuff, this isn't the way to handle it, he

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     immediately begins to engage in a course of conduct that - since
     I am not familiar with the facts of the previous case just the nature
     of the charges -- must have been even more intense and
     persevering because in this instance, a jury of 12 did find you
     guilty of stalking and terroristic threats. And those are serious
     crimes. They are graded as misdemeanors, but they are crimes
     that go to the very heart of another person’s sense of safety and
     well being.

N.T. Sentencing Hr’g, 9/19/17, at 19.      The court, after giving additional

reasons for its sentence, then sentenced Appellant to two consecutive terms

of one-and-a-half to five years’ imprisonment for an aggregate sentence of

three to ten years’ imprisonment. Id. at 25.

     Appellant filed a post-sentence motion contending that his aggregate

sentence falls within the aggravated range of the sentencing guidelines.

Appellant’s Post-Trial Mot., 9/21/17, at 2 (unpaginated). He challenged his

sentence as follows:

     The aggregate sentence totals three (3) to ten (10) years.

     7. The sentences as imposed fall within the aggravated range of
     the standard sentencing guidelines.

     8. Although [Appellant] has a criminal record placing his prior
     record score at five (5), the vast majority of these offenses are
     summary and misdemeanors offenses that do not exhibit a violent
     history necessitating an aggravated sentence, with the sole
     exception occurring in 1984 in California.

     9. [Appellant] likewise does not have a record of prior, similar
     offenses that would indicate a lack of amenability to treatment
     and/or rehabilitation.

     10. In the present case, [Appellant’s] actions did not result in
     physical harm or medical care to any of the victims.




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         11. The victims in the present case were not particularly
         vulnerable, nor were they members of a protected class that
         would call for an aggravated sentence.

Id.

         On January 22, 2018, the trial court denied Appellant’s post-sentence

motion. In its decision, the court justified its sentence in part as follows:

         Likewise, [Appellant’s] contention that the victims in the instant
         matter do not call for an aggravated sentence because they were
         neither “particularly vulnerable” nor “members of a protected
         class” is unpersuasive. Initially, the court notes that [Appellant]
         had been warned to discontinue his communications with the
         victim in this matter by the Honorable Joseph C. Madenspacher in
         a previous judicial proceeding. Failing to heed this warning,
         [Appellant’s] threats drastically increased in both volume and
         severity, while adding personal effects which amplified their
         seriousness. As indicated by the Commonwealth, “[t]he victim
         suffered financial, social and emotional loss caused by the need
         for increased security and worry over the safety of himself and his
         family.” Commonwealth Answer, p. 2.

Trial Ct. Op. at 5-6 (footnote omitted).

         The court docketed Appellant’s pro se notice of appeal on January 31,

2018. The docket reflects that the court served its Pa.R.A.P. 1925(b) order

on February 28, 2018, and Appellant timely filed his Rule 1925(b) statement

on March 19, 2018. Appellant’s Rule 1925(b) statement raises the following

issue:

         1. The Honorable Court abused its discretion by imposing
         manifestly excessive and clearly unreasonable consecutive
         sentences in the aggravated range for an aggregate of 3 to 10
         years in a state correctional institution under the following
         circumstances:

         a) Mr. Watkins generally lacks a violent criminal history;


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      b) his instant crimes did not occur against a protected class;

      c) his instant crimes did not result in physical harm or injury to
      any victims;

      d) and the [c]ourt impermissibly aggravated Mr. Watkins, in part,
      because of an admonition directed to Mr. Watkins from a previous
      trial court not to contact his employer following a trial in which Mr.
      Watkins was found not guilty and absolved of criminal liability by
      a jury of his peers.

Rule 1925(b) Statement.

      Appellant’s brief solely raised the last issue:

      Was the trial court’s decision to impose consecutive sentences in
      the aggravated range based on purported statements made to
      [Appellant] by a different judge, on different charges of which he
      was acquitted, a manifest abuse of the court's discretion?

Appellant’s Brief at 12.

      Initially, Appellant challenges the discretionary aspects of his sentence,

an issue that is not appealable as of right. See Commonwealth v. Colon,

102 A.3d 1033, 1042 (Pa. Super. 2014). Instead, this Court has set forth an

analytical framework under which we determine whether we may exercise our

discretion to hear such an appeal. Under that framework, we determine—

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his issue; (3) whether Appellant's brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence; and (4) whether
      the concise statement raises a substantial question [regarding the
      sentence’s impropriety under the Sentencing Code]. [I]f the
      appeal satisfies each of these four requirements, we will then
      proceed to decide the substantive merits of the case.

Id. at 1042–43 (citation omitted). “Objections to the discretionary aspects of

a sentence are generally waived if they are not raised at the sentencing

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hearing or in a motion to modify the sentence imposed.” Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

       Here, Appellant failed to raise the issue of alleged statements made by

him to a different judge on unrelated charges for which he was acquitted.

Appellant opted not to challenge the trial court’s acknowledgment of an

“admonishment [from Judge Madenspacher] following that trial that you can’t

be doing this stuff, this isn't the way to handle it . . . .”, N.T. Sentencing Hr’g

at 19, either at the sentencing hearing or in a post-sentence motion. See

Moury, 992 A.2d at 170. Accordingly, he has waived the issue, and we affirm

the judgment of sentence. See id.5

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2018




____________________________________________


5 But even if Appellant did not waive the issue, and assuming he complied with
the requirements set forth in Colon, 102 A.3d at 1042, we would not have
granted relief. See Commonwealth v. Bowers, 25 A.3d 349, 356 (Pa.
Super. 2011) (stating that a sentencing court may consider “arrests that result
in acquittals, if the judge is aware of the acquittal” (citations omitted)).


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