J-S78023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

LARRY L. WALTERS

                            Appellant                     No. 436 MDA 2014


           Appeal from the Judgment of Sentence February 11, 2014
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000104-2013


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

MEMORANDUM BY JENKINS, J.:                             FILED JANUARY 12, 2015

        Appellant Larry Walters appeals from the judgment of sentence

entered in the Cumberland County Court of Common Pleas following his jury

trial conviction for harassment.1 Appellant now challenges the sufficiency of

the evidence and the legality of his sentence.             We affirm Appellant’s

conviction,    but   vacate     his   judgment   of   sentence   and   remand   for

resentencing.

        In its Pa.R.A.P. 1925(a) opinion, the trial court fully and correctly sets

forth the relevant facts and procedural history of this case. Therefore, we

have no reason to restate them.

        Appellant raises the following issues for our review:

____________________________________________


1
    18 Pa.C.S. § 2709(a)(7).
J-S78023-14


      I. Did the Commonwealth establish beyond a reasonable doubt
      that Appellant, Larry L. Walters, was guilty of M3 harassment?

      II. Did the term of incarceration imposed on Appellant, Larry L.
      Walters, by the trial court exceed the statutory maximum?

Appellant’s Brief, p. 5 (all capitals removed).

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

      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
      [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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011).

      Regarding Appellant’s sentencing claim, we observe:

      The scope and standard of review applied to determine the
      legality of a sentence are well established. If no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction. An illegal sentence must be
      vacated. In evaluating a trial court’s application of a statute, our

                                      -2-
J-S78023-14


      standard of review is plenary and is limited to determining
      whether the trial court committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001-1002 (Pa.Super.2006)

(internal citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the thorough and well-reasoned opinion of the Honorable

Christylee L. Peck, we conclude the Appellant’s sufficiency of the evidence

claim merits no relief. The trial court opinion comprehensively discusses and

properly disposes of Appellant’s claim.       See Trial Court Pa.R.A.P. 1925(a)

Opinion, dated May 30, 2014, at 2-20 (finding: “[I]n summary, [Appellant]

continued to contact [the victim] after being informed twice that she wanted

no further contact with him, and contacted her in such bizarre fashion, from

a lawsuit, to clippings from a book on Psychotherapy, to combative

handwritten notes, culminating in [Appellant’s] unsettling antics at the Club’s

Christmas party. Such action by [Appellant] made [the victim] fear for her

and her family’s safety.        Accordingly, there was sufficient evidence that

[Appellant] repeatedly communicated with [the victim] with the intent to

harass her from which the jury could find [Appellant] guilty.”). Accordingly,

we affirm Appellant’s conviction on the basis of the trial court opinion.

      However, following Appellant’s conviction, the trial court imposed a

sentence of two to twenty-three months of incarceration.         Appellant, the

Commonwealth, and the trial court all agree that this sentence exceeded the




                                        -3-
J-S78023-14



statutory limits for a harassment conviction.2 See Appellant’s Brief, p. 43;

Commonwealth’s Brief, p. 20; 1925(a) Opinion, p. 21.            We agree.

Therefore, we vacate Appellant’s sentence and remand the matter for

resentencing.3

       Conviction affirmed. Judgment of sentence vacated. Matter remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2015




____________________________________________


2
  Harassment, as a misdemeanor of the third degree, carries a statutory
maximum sentence of one year of incarceration. See 18 Pa.C.S. §§ 1104 &
2709(c)(2).
3
   To the extent Appellant challenges the discretionary aspects of his
sentence, our vacation of the sentence and remand for resentencing renders
this claim moot.



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                                                                                         J' 1til 3/ I LJ
 COMMONWEALTH                                    IN THE COURT OF COMMON PLEAS OF                               /
                                                 CUMBERLAND COUNTY, PENNSYLVANIA

                 v.

LARRYL. WALTERS                                  CP-21-CR-OI04-2013

                         IN RE: OPINION PURSUANT TO PA. RAP. 1925
Peck, J., May 30,2014-
           On October 31, 2013, after a jury trial, Defendant was found guilty at Count 2,
Harassment, a misdemeanor of the third degree.! A mistrial was declared on Count 1,
Stalking, a misdemeanor of the first degree, after the jury reported that it was deadlocked
as to that charge. 2 On February 11,2013, Defendant was sentenced at Count 2 to undergo
a period of incarceration in the Cumberland County Prison of not less than two nor more
than 23 months, with credit for 30 days previously served, and to pay the costs of
prosecution and a fine of $100.00. 3 On March 7, 2014, Defendant filed a Notice of
Appeal. 4 In accordance with Pennsylvania Rule of Appellate Procedure 1925(b),
Defendant has filed the following concise statement of matters complained of on appeal:
               I. Even viewing the evidence in the light most favorable to the
                  Commonwealth as verdict winner, there was insufficient evidence as
                  a matter of law to support the verdict of guilt for M3 Harassment
                  (Count 2).
               2. The incarceration and consecutive nature of the sentence was
                  excessive considering the totality of the conduct alleged in the
                  testimony and that none of the individual instances of conduct
                  complained of were frightening/threatening alone but instead at
                  worst more of an annoying and upsetting nature to the alleged victim
                  andher-husband;5     . ....       ..       ..... . .... ... . . - ......



1 Order   of Court, In Re: Verdict/Appear for SentenceIBail (October 31, 2013).
2 Id.

'Order of Court, In Re: Sentencing (February 11,2014).
4 Notice   of Appeal, filed March 7, 2014.
, Defendant's Concise Statement of the Errors Complained of on Appeal, March 28, 2014,   n 1-2.


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                     This Court's opinion in support of our Order of Court, In Re: Sentence, is written
        pursuant to Pennsylvania Rule of AppelJate Procedure 1925(a).
                                                   STATEMENT OF FACTS
                    Lorrie Preston, a resident of Hampden Township and a member of The
        Susquehanna Appalachian Trail Club (the Club), testified at Defendant's tria1. 6 She
        testified that the Club is a nonprofit hiking organization that has been in existence for 60
        years. 7 In addition to leading hikes and creating opportunities for members of the
        community to get outdoors, the Club also maintains twenty miles of the Appalachian
        Trail from Route 225 to Rausch Gap in Dauphin County.8 At the time of trial, Mrs.
       Preston was the Vice-President and Program Chair of the organization, a member of the
       Membership Committee, and sometimes hike leader. 9
                    Ms. Preston testified that she first came to know Defendant when she joined the
       Club in 2005. 10 She joined the Club in order to participate in weekday hikes and met
       Defendant through those hikesY She and Defendant occasionally exchanged words but
       she considered him no more than an acquaintance. 12 In 2006, Defendant began contacting
       Mrs. Preston at home, inquiring if she would like to scout a hike or sweep a hike with
       him.13 Mrs. Preston testified that it was unusual for one member of the Club to randomly
       call another member in order to plan such activities. 14 She explained that every quarter
       members must tum in a list of hikes they wish to lead the next quarter. IS In order to
       provide the details of the hike to other members who may wish to participate, a member

       6    Notes of Testimony, In Re: Jury Trial Proceedings, October 30 and 31, 2013 (Peck, J.) (hereinafter "N.T. at _") at
       13,14.
       7 N.T.     at 14.
       'N.T. at 14.
       'N.T. at 14.
       10    N.T. at 15.
       i1    N.T. at 15 .
      . 12   N.T. at 16.
       13    N.T. at 16.
       I' N.T. at 19, 17.
       I'N.T. at 17.

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 fIrst scouts the hike, figuring out the specifics like how to get to the hike, where to park,
and the type of terrain. 16 Sweeping a hike, the other activity Defendant suggested to Mrs.
Preston, is the responsibility of the last person in line on a hike. 17 The sweeper ensures
that no hikers get off the trail or end up lost. 18
       Mrs. Preston testified that the first time Defendant called her, Defendant reached
her answering machine. 19 She returned his call and left him a message explaining that she
was not interested. 2o She did not, however, return any subsequent calls from Defendant. 21
               In 2005, 2006, or possibly the beginning of 2007, Mrs. Preston received a few
mailings at her house from Defendant. 22 Those mailings consisted of articles tom out of a
National Rifle Association magazine which Defendant then annotated with his own
political viewpoints, including his views on the right to bear arms. 23 Mrs. Preston testified
that these mailings were also sent to other members of the Club. 24 She described the
annotations of Defendant as "sort of irrational.,,25 She also testified that Defendant's
writings were a "little bit scary" but that they did not appear to address her specifically
and she did not take it personally.26 She further explained that she had not discussed
Defendant's political viewpoints with him previously and that, in general, members of the
Club did not discuss issues that might cause friction. 27




"N.T.at 17.
17   N.T. at 17.
18   N.T. at 17.
"N.T. at 18.
20 N.T. at 18.

21   N.T. at 18.
22         18.
     N.T. at
2J N.T. at 18.

24 N.T. at 18.

"N.T. at 19.
26 N.T. at 19.

27 N.T. at 19.


                                               1/-3
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      According to Mrs. Preston, Defendant was not active with the Club between 2007
and 2011. 28 Then, in June of 2011, Mrs. Preston received a mailing from Defendant. 29
She described it as "just folded and stapled in a couple of different places" with no
envelope. 3o The mailing was another request from Defendant asking Mrs. Preston to
scout a hike with him about one and a half hours east of Harrisburg called Ringing
Rocks. 31 In addition to information about the hike, a cartoon about a nude beach was also
included in the mailing from Defendant. 32 But, according to Mrs. Preston, what
particularly caught her attention was a heart that Defendant had drawn over the 'i' in her
first name.J3 She testified,
                      I felt really creepy about it. I just didn't understand why he
                      would do that. He knew I was married. It really made me
                      uncomfortable, but I didn't know how I was going to handle
                      it. 34
Because of how uncomfortable it made her, Mrs. Preston decided to keep the letter with
the heart over the 'i'. 35
            In the middle of July 2011, the Club was having a picnic, and Mrs. Preston was to
lead a small hike before the picnic. 36 The hike was to begin at 4:00 p.m. so she arrived at
3:30 p.m. 37 Defendant was already there. As Mrs. Preston put it, she "was shaking like a
leaf that day at the picnic.,,38 Nonetheless, Mrs. Preston led the hike as scheduled, and




28   N.T. at 2D.
29   N.T. at 21.
"N.T. at 22.
II   N.T. at 22-23.
"N.T. at 23.
"N.T. at 23.
34   N.T. at 24.
"N.T. at 24.
,. N.T. at 25.
31   N.T. at 25.
"N.T. at 25.
                                                 1/-4
,   ,
                                                                                  Circulated 12/29/2014 01:42 PM



        Defendant went along. 39 After the hike, :Mrs. Preston went to get another bottle of water
        from the picnic coolers and Defendant approached her. 4o She testified that she "got really
        nervous.,,41 Even so, she told Defendant that she was not interested in scouting or leading
        any hikes with him, or any other man, and that she was happily married. 42 Then, as a
        result of the attention Defendant was focusing on her, :Mrs. Preston did not lead any hikes
                                                                             43
        the rest of the summer and began staying away from Club activities.
                    However, when the new quarter began, Mrs. Preston decided to lead a hike,
        choosing Longwood Gardens.44 She had previously led a hike at Longwood Gardens', and
        Defendant had not attended. 45 She chose it for her next hike specifically for that reason.46
        She publicized the hike as all members of the Club do by submitting it to the Club
        newsletter, Bushwack Bulletin. 47 Defendant left Mrs. Preston a message informing her
        that he would be participating in the Longwood Gardens hike.48 After receiving
        Defendant's message, Mrs. Preston spent the rest of the night and the next day deciding
        how she could get out of leading the hike. 49 In the end, she canceled it due to lack of
        interest by other members. 5o :Mrs. Preston's husband, Bob Preston, personally called
        Defendant and let him know that he and his wife were cancelling the Longwood Gardens




        39   N.T. at 25.
        "0
             N,T. at 26.
        41   N.T. at 26.
        42   N.T. at 26,
        4>   N.T, at 27-28.
        44   N:T.~t 28.
        "N.T. at 28.
        46   N,T. at 28.
        47   N,T. at 28.
        48   N.T, at 28,
        "N.T, at 28.
        $ON.T,at29,

                                                  11-5
                                                                         Circulated 12/29/2014 01:42 PM



hike. 51 Shortly thereafter, Mrs. Preston informed the Club president, Karen Balaban, that
she was no longer comfortable leading hikes for the Club. 52
       At a Christmas party that same year, Mrs. Preston and Defendant were both in
attendance. 53 However, Mrs. Preston testified that she "blatantly ignored" Defendant and
had no interaction with him.54 The next time Mrs. Preston saw Defendant was at the
Club's March banquet the following year. 55 Defendant attempted to speak to Mrs. Preston
at the banquet but she walked away from him.56
      In June of 2012, Mrs. Preston received a 20 page packet in the mail from
                                    J


Defendant. 57 As with a previous mailing from Defendant, this packet was not in an
envelope but rather consisted of folded papers held together with masking .tape. 58 The
packet included recipes, something Mrs. Preston had never discussed with Defendant, a
U.S.O (United Services Organizations) flier, articles from the NRA magazine, a George
Will column at the bottom of which Defendant had written "liberals destroying truth and
freedom in America," and an editorial by Wayne LaPierre, the Executive Vice President
of the NRA.59 The packet also included a Miles Kimball advertisement depicting "a very
innocent little girl sitting on the stairs with her teddy bear or stuffed animal or something
like that" and information on gardening for wildlife, one of Mrs. Preston's interests
which she shared with members of the Club. 60 From there the material in the packet
became more objectionable: a comic of people making love and a page of Playboy's
Party Jokes that included pictures of naked women and two jokes checked off by


"N.T. at29.
"N.T. at 30.
"N.T . at 30.
54   N.T. at 30.
"N.T. at 31.
"N.T. at 31.
;7 N.T.   at 31.
"N.T. at 32.
"N.T. at33.
60   N.T. at 34.
                                           11-6
                                                                           Circulated 12/29/2014 01:42 PM



 Defendant, one of which stated: "What has four arms and four legs and never works out?
Marriage.,,61 Continuing towards the more objectionable, the next item in the packet was
 an article titled "The Vibrator," followed by four cartoons titled "Cucumbers are Better
than Men Because," and another page containing the following lines: "The average
cucumber is at least six inches long; cucumbers stay hard for a week; and, a cucumber
won't tell you size doesn't matter.,,62 On the last page of the packet was an article about
personal security, including 20 steps to enhance home security.63
            Mrs. Preston testified that she was "absolutely sick" after reading through the 20
page packet, that she felt dirty, and that "it really ticked [her] off.,,64 Either the day she
received the packet, or the next, Mrs. Preston's husband, Bob, called the Hampden
Township Police Department. 65 For her part, Mrs. Preston wrote Defendant a letter which
she sent, certified mail, on June 15, 2012. 66 That letter informed Defendant that Mrs.
Preston felt harassed by his mailings, that his mailings were inappropriate, that the 20
page packet was totally unacceptable, and that she had no interest in sharing recipes ·or
reading about Defendant's political views or being subjected to sexual materials. 67 And to
make' sure Defendant understood, Mrs. Preston told him, in the letter, that she had
"absolutely no interest in any further contact with [himj.,,68 She also informed Defendant
that any further contact from him would be reported to the police and that he was not
welcome on any hikes she might lead through the Club. 69




61   N.T. at 35-36.
"N.T. at 36-37.
6'   N.T. at 37.
"'N.T. at 37-38.
6'   N.T at 38.
"N.T. at 39.
67   N.T. at 40.
68   N.T. at 41.
69   N.T. at 41.
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             The mail carrier attempted, unsuccessfully, to deliver the letter on three
 occasions. 7o After the third failed attempt, the letter was returned to Mrs. Preston as
refused. 71 Determined to get the letter to Defendant, Mrs. Preston and her husband
planned on personally handing the letter to Defendant at an upcoming Club picnic. 72
However, Defendant did not attend the picnic, the first social event held by the Club that
Defendant had not attended in quite some time. 73 In her continued attempt to deliver the
letter to Defendant, Mrs. Preston returned to the post office and was told to send the letter
with delivery confirmation. 74 Although this would not require Defendant to sign for the
letter, Mrs. Preston would at least get confirmation that the letter was delivered to
Defendant's residence. 75 Mrs. Preston mailed the letter on August 2, 2012, and did
receive confirmation that it had been delivered. 76 However, the letter was then sent to the
Club's P.O. Box with Defendant's address crossed out and replaced by the Club's
address. 77 According to Mrs. Preston, the letter did not look like it had been opened. 78
The following was written on the envelope:
                       I got this trash 2 August of the full moon. Queen Lorrie
                       incised because I won't read her insanity. She is not the first
                       nut to do this, for the world to know an infantile, neurotic
                       victim of domestic violence and hypocrite. Someone must be
                       the example. Get help, queen. Louise Sis got the same
                       Xeroxes as Lorrie. Why isn't Louise badgering me[?] Susan
                       D. told Lorrie the woodpecker joke with the punchline
                       sweetest ash I stuck my pecker in. Why isn't Susan under
                       attack? Shakespeare wrote, he protested too much. Police
                       know a guilty party when people say too much. Lorrie said, I

70    N.T. at 43.
71    N.T. at 43.
T.!   N.T. at 43-44.
7J    N.T. at 44.
74    N.T. at 44.
"N.T, at 44,
76    N,T, at 44,
77    N.T, at 46.
78    N,T. at 46.

                                                   #-8
                                                                                Circulated 12/29/2014 01:42 PM




                   have a good marriage, good husband, love my family, etc.
                   Just what a victim of domestic violence would say.79
Also written on the envelope was the phrase, "a lunatic Libra tart coquet. ,,80
            Mrs. Preston testified that, around the same time the above letter was forwarded to
the Club, Defendant filed a hand-written civil action against Mrs. Preston and the Club. 8 !
Mrs. Preston read at length from Defendant's lawsuit which is worth quoting in detail
here, starting with paragraph 5 of the suit:
                   Number 5. Lorrie Preston for some unknown reason is
                   indignant and offended, sending the plaintiff certified and
                   receipt registered mail. The plaintiff, after dealing with other
                   neurotic women, returned the letters.
                   Number 6. Towards the end of Bullfrog Valley hike, Susan
                   Donmoyer told Clarence's woodpecker joke. The woodpecker
                   says thar s the sweetest ash I stuck my pecker in. Lorrie is not
                   offended by this adult humor.
                   Number 7. During hikes in 2006/2007, Lorrie, like Anna
                   Pruet ... would tag along with the plaintiff like a lovesick
                   schoolgirl.
                   Number 8. Lunch .. After one hike the only place the plaintiff
                   could s it was across from Lorrie. She enj oyed the plaintiff
                   licking sauce off her fingers.                            .
                   Number 9. The last hike Lorrie lead, she arranged to sit with
                   the plaintiff again.
                   Number 10. The plaintiff told his friend, John Zeranco about
                   Lorrie. John said, she likes you, Larry. She wants you.
                   Number 11. The plaintiff no longer has the answering
                   machine of silly, giddy Lorrie, barely able to think or talk to
                   explain she wouldn't be a sweep on the plaintiffs hike. She
                   enJoyed it-She was. not indignant or offended. 82     . . ....... .




79   N.T. at 86.
80 N.T.   at 86.
"N.T. at 60.
"N.T. at 61·62.
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    Addressing the above, Mrs. Preston testified that any claims contained in those
    paragraphs regarding her are false. 83 In response to the lawsuit, Mrs. Preston hired an
    attorney and also returned to the Hampden Township Police Department seeking
    advice. 84 She next had her attorney draft a defiant trespass letter, which she mailed to
    Defendant, warning Defendant that if he continued to bother Mrs. Preston the police
    would be called and he would be arrested. 8s
          Although Mrs. Preston hired an attorney to defend against Defendant's lawsuit,
    the Club's attorney stepped in and filed a motion to dismiss the case. 86 In response,
    Defendant filed a Rebuttal of Petition to Dismiss. 87 Paragraph 8 of Defendant's Rebuttal
    reads, "The plaintiff has no desire to contact Looney Preston, a hysterical lunatic, any
    more than talk to his crazy ex-wife. As for the plaintiff being incoherent, he is just
    following Looney Preston's lead.,,88 Mrs. Preston testified that she was "absolutely
    terrified" at this point and was starting to worry about her safety. 89
               Despite Defendant's claim in paragraph 8 above that he has no desire to have
    contact with Mrs. Preston, he continued to contact her, including sending an item to Mrs.
    Preston's home address and addressed to MyDamn V.P., Lorrie Preston. 90 On the back of
    this mailing 91, Defendant wrote, in part, "\Vhy she's an ass crying wolfI?] Who knows.
    She needs a therapist to deal with her irrational fears, not lawyers. What's her




    B3   N.T. at 64.
    "N.T. at 65.
    " N.T. at 65.
    "N:t.at66. Appareriiiy, Detendant's lawsuit namedih,,' Club 'as 'weHas 'Mrs. 'PrestOn 'as defendants.SlUceMrs.
    Preston was, at the thne, an officer of the Club, the Club's insurance covered the cost of an attorney to defend the
    suit on behalf of the Club and Mrs. Preston. N. T. at 66.
    87   N.T. at 67.
    "N.T. at 70.
    B9   N.T. at 71.
    "N.T. at 70, 72.
    " Commonwealth's Exhibit 9,
I
                                                                             Circulated 12/29/2014 01:42 PM



problem[?],,92 In response, the Club's attorney sent Defendant a letter infonning him that
he cannot directly contact any person named in the lawsuit initiated by Defendant. 93
             On the 24th or 25 th of October of 2012, Mrs. Preston was the featured speaker at
the Club's Fall membership meeting in the Community Room of the Camp Hill Giant. 94
The event was advertised, including Mrs. Preston's participation, in the Bushwack
Bulletin, through e-mail, and on the Club's website. 95 Over concern that Defendant would
attend the event, Mrs. Preston's husband stayed downstairs to watch for Defendant while
Mrs. Preston prepared for her presentation upstairs. 96 Defendant did show up at the Camp
Hill Giant on the day of Mrs. Preston's presentation and spoke with Mrs. Preston's
husband. 97 Shortly thereafter, Defendant added Mrs. Preston's husband as a defendant in
his lawsuit through a Modification Continuation of Complaint. 93 Like the original
complaint, the Modification contained many paragraphs of Defendant's ramblings. 99 On
November 20, 2012, Defendant filed a Petition for Injunction in Cumberland County
requesting that the court "overrule the defiant trespass letter [sent to Defendant by Mrs.
Preston] until the Court rules on this matter ... and Complaint .... ,,100
             In December of 2012, the Prestons received another mailing from Defendant at
their home. IOI Mrs. Preston testified that the writing on this mailing, which was four
pages of the book Healing the Shame that Binds You, by John Bradshaw, was
Defendant's handwriting. lo2 Mrs. Preston went on to testify in more detail regarding the


nN.T. at 73.
93    N.T. at 74.
94    N.T. at 75, 117.
"N.T.at75.
"N.T. at 75 .
•7   N.T. at 76.
"N.T. at 76·77.
99   N.T. at 77·79.
100   N.T. at 80, 84.
101   N.T. at 87.
102   N.T. at 87.

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                                                                               Circulated 12/29/2014 01:42 PM



pages contained in the mailing and noted that the general topic was Psychotherapy.103 She
also testified that Defendant had written on one of the pages "I don't even want you to
send me a recipe."I04 This statement was clearly a reference to the letter Mrs. Preston had
sent to Defendant on August 2, 2012, although that letter, when forwarded to the Club,
appeared not to have been opened.
            Mrs. Preston and her husband did not attend the Club Christmas party in 2012 or
the hike the following day due to a desire to avoid Defendant. 105 On December 21 st, Mrs.
Preston and her husband went to the Hampden Township Police Department with every
document in their possession relating to Defendant. 106 As Mrs. Preston testified, she had
decided that "enough is enough.,,107 She explained her feelings at the time as follows:
                    All I wanted was to be left alone. I really didn't think it was
                    too much to ask in any normal person, the ignoring, the tone
                    verbally, the not calling him back. All the steps that I had
                    taken whichI felt were the way I should handle myself, all of
                    those things. I was trying to get it through his head, all he has
                    to do is leave me alone. My letter said it. I .gave him the
                    benefit of the doubt. Enough is enough. Please don't contact
                    me. The lawyer's letter. All the Prestons, he said in the letter,
                    all the Prestons want is peace, to be left alone. That's all we
                    want, to be left alone.
                    He did not leave me alone. He escalated this attack. Every
                    single time it was coming in faster and faster. There was
                    nothing I could do to stop it I felt I absolutely had no
                    recourse. The last thing I wanted to do was get involved in a
                    lawsuit and press charges,. but there came a point where there
                    was nothing else I could do. I was in danger. My life felt like
                    it was in danger. My husband's life felt like it was in danger.
                    I wanted a stop to it, and I did what I had to do. I went to the
                    poIiceand pressed charges. 108 .. ... . .... . ... ..   . ...


103 N.T. at 88.
,,, N.T. at 89.
lOS   N.T. at 91.
106N.T. at 92.
[07   N.T. at 92.
'" N.T. at 92·93.
                                                14-12
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    Finally, when asked how the actions of Defendant had affected her, Mrs. Preston
    concluded by saying, "everything I know is a shambles right now."I09
                 Although the Prestons did not attend the Club's Christmas party in 2012, Sharon
    Shellenberger, one of the directors of the Club, did. llo She testified that Defendant was
    also there and that he brought a box to the party which had a picture of a gun on the
    outside. l1l Defendant opened the box and showed the contents to Ms. Shellenberger
    which, to her, appeared to be a real gun. II2 She testified that he then walked by her with
    the box, and, at that point, she realized it was a chocolate gun. II3 She told Defendant that
    she felt that a chocolate gun was inappropriate for a party with small chiidrenY4
    Defendant said, "then just cut it up," which Ms. Shellenberger did after taking a picture
    of it.IIS According to Ms. Shellenberger, the outside of the box gave no indication that it
    contained a chocolate gun rather than a real gun. ll6
                The day after the Christmas party, Ms. Shellenberger led a hike in Harrisburg,
    PA. l17 Anyone interested in participating in the hike was to meet Ms. Shellenberger at
    Fisher Plaza behind the Capitol building. II8 The first to arrive was Defendant. II9 Within a
)
    few minutes of Defendant's arrival more participants began showing Up.I20 Destinations
    included as part of the hike were the Capitol building and the Governor's mansion. I21
    Because of security at those two locations, Ms. Shellenberger requested that hikers leave

    109   N. T. at 96.
    lloN.T. at 154.
    III   N.T. at 154-55.
    112   N.T. at 155.
    ll3 N.T. at 155.
    ,14   N.T. at 155.
    I" N.T. at 155.

    "'N.T. at 156.
    117   N.T. at 156.
    lIS   NT. at 156.
    119   N.T. at 156.
    120   N.T. at 157.
    121   N.T. at 157.

                                                '1-13
                                                                           Circulated 12/29/2014 01:42 PM



    any items behind that might trigger the metal detectors that they would be required to
)
    pass through.122 Yet, despite Ms. Shellenberger's request, Defendant brought two pocket
    knives to the Capitol building and triggered the metal detector. I23 Security took
    Defendant's knives and returned them when the group exited. 124 This scene was repeated
    at the Governor's mansion. 12S
            Robert Preston, the husband of Lorrie Preston and a member of the Club, also
    testified for the Commonwealth. 126 In particular. he was present in late October of 2012
    when Mrs. Preston was the featured speaker at the Club's Fall membership meeting in the
    Community Room of the Camp Hill Giant. 127 At that meeting, Mr. Preston waited
    downstairs by the entrance specifically to intercept Defendant if he attempted to attend
    the meeting. 128 Defendant did come to the Giant that evening, and Mr. Preston asked him
    not to attend the meeting. m Defendant responded that he was going to the meeting unless
    the Club asked him not to attend. 130 Mr. Preston reminded Defendant of the letter sent to
    Defendant by Mrs. Preston's attorney and then informed Defendant that, if he attended
    the meeting, he would have no alternative except to call the police. l3l Mr. Preston
    testified that Defendant became upset and began swearing, telling Mr. Preston that if he
    could not attend the meeting he would be attending the Christmas party.132 Defendant
    told Mr. Preston that he would see him in court and then left. 133 A few days later,


    122   N.T. at 157.
    123   N.T. at 157.
    '>4   N.T. at 157.
    12S   N.T.   ai 157.
    126   N.T. at 164.
    t27   N.T. at 174.
    128   N.T. at 174-75.
    129   N.T. at 175.
    130   N.T. at 175.
    131   N.T. at 176.
    132   N.T. at 176.
    m N.T. at 176.
                                            1/-14
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 Defendant added Mr. Preston to his lawsuit. 134 Mr. Preston testified that Defendant's
 statement that he would be attending the Christmas party caused him and his wife to not
attend. 135
            Mr. Preston also testified that he was informed of the events at the Christmas party
and the hike the following day involving Defendant. 136 According to Mr. Preston, that
information factored into his and his wife's decision to speak to the police in
December. 137

            The Commonwealth also called Trisha Sanders, the president of the Club, to
testify.138 As president, Ms. Sanders was familiar with the allegations in Defendant's civil
lawsuit. 139 She testified that, despite Defendant's claim in Paragraph 1 of his Complaint,
she had never been abused or stalked by a member of the Club,140
      At the conclusion of the trial, the jury found Defendant guilty at Count 2,
Harassment, a misdemeanor of the third degree. 141 A mistrial was declared on Count 1,
Stalking, a misdemeanor of the first degree, after the jury reported that it was deadlocked
as to that charge. 142 On February 11, 2013, Defendant was sentenced at Count 2 to
undergo a period of incarceration in the Cumberland County Prison of not less than two
nor more than 23 months, with credit for 30 days previously served, to pay the costs of
prosecution, and a fme of $100.00 .143'Defendant then filed this timely appeal.




134 N.T.   at 176.
135   N.T. at 177.
136N,T. at 177,
b; N:T. at 178, .
138   N.T. at 148.
139   Commonwealth's Exhib it 8.
14°N.T.    at 151,
141   Order of Court, In Re: Verdict/Appear for SentencelBail (October 31,2013),
14'ld.

14J   Order of Court, In Re: Sentencing (February 11,2014),

                                                     19-15
                                                                              Circulated 12/29/2014 01:42 PM




                                         DISCUSSION
                                 Sufficiency of the Evidence.
         Defendant claims there was insufficient evidence as a matter of law to support the
jury's guilty verdict. For the reasons below, we fmd that there was sufficient evidence
and that Defendant's claim is therefore meritless.
         In reviewing sufficiency of evidence claims, a court:
               must determine whether the evidence admitted at trial, as well
               as all reasonable inferences drawn therefrom, when viewed in
               the light most favorable to the verdict winner, are sufficient to
               support all the elements of the offense. Additionally, to
               sustain a conviction, the facts and circumstances which the
               Commonwealth must prove, must be such that every essential
               element of the crime is established beyond a reasonable
               doubt. ... The fact finder is free to believe all, part, or none
               of the evidence presented at trial.
Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011) (internal citations
omitted). "It is well settled that a jury or a trial court can believe all or a part of or none of
a defendanfs statements, confessions or testimony, or the testimony of any witness."
Commonwealth v. Morales, 2014 WL 1669802, No. 629 CAP (Pa. Apr. 28, 2014). The
jury is not obliged to accept a defendant's evidence. Commonwealth v. Morales, 2014
WL 1669802, No. 629 CAP (Pa. Apr. 28, 2014).
                                          Harassment
         A defendant is guilty of Harassment if, "with intent to harass, annoy or alarm
another," the defendant: "(7) communicates repeatedly in a manner other than specified
inparagraphs(4), (5) and (6)." 18 P.C.S:A:§2709(a)(nPar1l:~apl!s (4),J~), an.4 (6).
state:
               (4) communicates to or about such other person any lewd,
               lascivious, threatening or obscene words, language, drawings
               or caricatures;
               (5) communicates repeatedly in an anonymous manner;
               (6) communicates repeatedly at extremely inconvenient
               hours;
                                            .19- 16
                                                                           Circulated 12/29/2014 01:42 PM



18 Pa.C.S.A. § 2709(a)(4), (5), and (6). "An intent to harass may be inferred from the
totality of the circumstances." Commonwealth v. Cox, 72 AJd 719, 721 (pa. Super.
2013).
         The facts supporting the jury's guilty verdict are as follows:
         In June of 20 11, Mrs. Preston received a mailing from Defendant. She described it
as 'Just folded and stapled in a couple of different places" with no envelope. The mailing
was a request from Defendant asking Mrs. Preston to scout a hike with him about one and
a half hours east of Harrisburg. In addition to information regarding the hike, a cartoon
about a nude beach was also included in the mailing from Defendant. Defendant had also
drawn a heart over the     'j'   in Mrs. Preston's first name. In response, Mrs. Preston told
Defendant at a Club picnic that she was not interested in scouting or leading any hikes
with him, or any other man, and that she was happily married.
         Later that same year, Mrs. Preston decided to lead a hike, choosing Longwood
Gardims. She had previously led a hike at Longwood Gardens, and Defendant had not
attended. She chose it for her next hike specifically for that reason. Defendant left Mrs.
Preston a message informing her that he would be participating in the Longwood Gardens
hike. Because of Defendant's intention to attend the hike, Mrs. Preston canceled it.
         In June of 2012, Mrs. Preston received a 20 page packet in the mail from
Defendant. The packet included recipes, something Mrs. Preston had never discussed
with Defendant, a U.S.O flier, articles from the NRA magazine, a George Will column at
the bottom of which Defendant had written "liberals destroying truth and freedom in
America," and an editorial by Wayne LaPierre, the Executive Vice President of the NRA.
The packet also included a Miles Kimball advertisement depicting "a very innocent little
-girlsfttliig on the stairs with her teddy bear or stuffed animaf or something like that'; and
information on gardening for wildlife. The packet also included a comic of people
making love; a page of Playboy's Party Jokes that included pictures of naked women and
two jokes checked off by Defendant, one of which stated: "What has four arms and four
legs and never works out? Marriage"; an article titled "The Vibrator"; followed by four

                                             1J-17
                                                                         Circulated 12/29/2014 01:42 PM




cartoons titled "Cucumbers are Better than Men Because"; and another page containing
the following lines: "The average cucumber is at least six inches long; cucumbers stay
hard for a week; and, a cucumber won't tell you size doesn't matter." On the last page of .
the packet was an article about personal security, including 20 steps to enhance home
security.
       At this point, Mrs .. Preston wrote Defendant a letter. That letter informed'
Defendant that Mrs. Preston felt harassed by his mailings, that his mailings were
inappropriate, that the 20 page packet was totally unacceptable, and that she had no
interest in sharing recipes or reading about Defendant's political views or being subjected
to sexual materials. And to make sure Defendant understood, Mrs. Preston told him, in
the letter, that she had "absolutely no interest in any further contact with [him)." She also
informed Defendant that any further contact from him would be reported to the police
and that he was not welcome on any hikes she might lead through the Club. The letter
was returned to Mrs. Preston as undeliverable. Mrs. Preston mailed the letter again on
August 2, 2012, and did receive confirmation that it had been delivered. However, the
letter was then sent to the Club's   P~O.   Box with Defendant's address crossed out and
replaced by the Club's address. The following was written on the envelope:
              I got this trash 2 August of the full moon. Queen Lorrie
              incised because I won't read her insanity. She is not the first
              nut to do this, for the world to know an infantile, neurotic
              victim of domestic violence and hypocrite. Someone must be
              the example. Get help, queen. Louise Sis got the same
              Xeroxes as Lorrie. Why isn't Louise badgering me[?] Susan
              D. told Lorrie the woodpecker joke with the punchline
              sweetish ash I stuck my peeker in. Why isn't Susan under
              attack? Shakespeare wrote, he protested too much. Police
              know'a guilty PartY when'people say too much: Corrie said; I
              have a good marriage, good husband, love my family, etc.
              Just what a victini of domestic violence would say.
Also written on the envelope was the phrase, "a lunatic Libra tart coquet." Based upon
later correspondence, the jury was presented with evidence that Defendant read Mrs.
Preston's letter prior to sending it to the Club and therefore knew that Mrs. Preston

                                            1/-18
                                                                         Circulated 12/29/2014 01:42 PM



wanted no contact with him. Nevertheless, Defendant continued to contact Mrs. Preston,
directly and indirectly.
       Around the same time the above letter was forwarded to the Club, Defendant filed
a hand-written civil action against Mrs. Preston and the Club, which included false claims
regarding Mrs. Preston. Next, Mrs. Preston had her attorney draft a defiant trespass letter,
which she mailed to Defendant, warning Defendant that if he continued to bother Mrs.
Preston the police would becailed and he would be arrested.
       Defendant continued to contact Mrs. Preston, including sending an item to Mrs.
Preston's home address and addressed to MyDamn V.P., Lorrie Preston. On the back of
this mailing, Defendant wrote, in part, "Why she's an ass crying woltT?] Who knows. She
needs a therapist to deal with her irrational fears, not lawyers. What's her problem[?l" In
response, the Club's attorney sent Defendant a letter informing him that he cannot
directly contact any person named in the lawsuit initiated by Defendant.
      On the 24th or 25 th of October of 2012, Mrs. Preston was the featured speaker at
the Club's Fail membership meeting in the Community Room of the Camp Hill Giant.
Defendant showed up at the Camp Hill Giant on the day of Mrs. Preston's presentation
and spoke with Mrs. Preston's husband, who asked him to leave. Prior to leaVing,
Defendant told Mr. Preston that he would be attending the Club's Christmas party.
Shortly thereafter, Defendant added Mr. Preston as a defendant in his lawsuit.
      On November 20, 2012, Defendant filed a Petition for Injunction in Cumberland
County requesting that the court "overrule the defiant trespass letter [sent to Defendant
by Mrs. Preston] until the Court rules on this matter ... and Complaint .... " Thus,
Defendant received and understood that letter.
      lriDeceIIl.btir6f 20fZ,-afterl)eferidaiifIiad n6wrecdvedtwo letters fnforminghim ...
that Mrs. Preston wanted no contact with him, the Prestons received another mailing from
Defendant at their home consisting of four pages of the book Healing the Shame that
Binds You, by John Bradshaw. Defendant had written on one of the pages "I don't even
want you to send me a recipe." This statement was clearly a reference to the letter Mrs.

                                         4- 19
                                                                         Circulated 12/29/2014 01:42 PM



 Preston had sent to Defendant on August 2, 2012, showing, as mentioned above, that
 Defendant had read the letter and was therefore aware that Mrs. Preston did not want to
 have any contact with him.
        Although the Prestons did not attend the Club's Christmas party in 2012, Sharon
 Shellenberger, one of the directors of the Club, did. She testified that Defendant was also
- there and that he brought a box to the party which had a picture of a gun on the outside.
 Defendant opened the box and showed the contents to Ms. Shellenberger which, to her,
 appeared to be a gun. She testified that when Defendant walked by her with the box she
 realized it was a chocolate gun. Although Mrs. Preston was not present, the jury could
 have reasonably inferred from Defendant's stated intention to attend the Christmas party,
 specifically addressed to Mr. Preston, that his actions at the party had been planned for
 Mrs. Preston with the intent to harass her.
        Thus, in summary, Defendant continued to contact Mrs. Preston after being
 informed twice that she wanted no further contact with him, and contacted her in such
 bizarre fashion, from a lawsuit, to clippings from a book on Pyschotherapy, to combative
 handwritten notes, culminating in Defendant's unsettling antics at the Club's Christmas
 party. Such action by the Defendant made Mrs. Preston fear for her and her family's
 safety. Accordingly,     there was sufficient evidence that Defendant repeatedly
 communicated with Mrs. Preston with the intent to harass her from which the jury could
 find Defendant guilty. Therefore this claim is without merit.
                                     Sentence of the Court
        Defendant next challenges the sentence imposeg by this Court as excessive in light
 of the totality of the Defendant's conduct. We disagree.
        In genera.!, "(s)enteridng!samatter vesteu -hiilie - souriddiscretlonof the - -
 sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse
 of discretion." Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005). A sentence
 constitutes an abuse of discretion if:
               the sentence imposed ... either exceed[ s1the statutory limits
               or [is] manifestly excessive. In this context, an abuse of
                                        11-20
                                                                                          Circulated 12/29/2014 01:42 PM



                     discretion is not shown merely by an error in judgment.
                     Rather, the appellant must establish, by reference to the
                     record, that the sentencing court ignored or misapplied the
                     law, exercised its judgment for reasons of partiality,
                     prejudice, bias or ill will, or arrived at a manifestly
                     unreasonable decision.
Id. "In determining whether a sentence is manifestly excessive, the appellate court must
give great weight-to the-sentencing court's discretion, as-he or she is in the best-position--
to measure factors such as the nature of the crime, the defendant's character, and the
defendant's display of remorse, defiance, or indifference." Commonwealth v. Mouzon,
828 A.2d 1126, 1128 (pa. Super. 2003). Accordingly, the sentencing court "has broad
discretion in choosing the range of permissible confinements which best suits a particular
defendant and the circumstances surrounding his crime." Commonwealth v. Boyer, 856
A.2d 149, 153 (Pa. Super. 2004): "In setting sentence, a court has discreti.on ... to run the
sentence concurrently with or consecutively to other sentences being imposed." Mouzon,
828 A.2d at 1130.
               Defendant was sentenced to 2 to 23 months incarceration, the top of the standard
range, to be served consecutively to any current sentence Defendant was serving. 144 As
the minimum of the sentence imposed was within the standard range, it falls far short of
being manifestly excessive. However, we now realize that the maximum term of
incarceration to which we sentenced Defendant exceeds the statutory maximum of one
year. Accordingly, we respectfully request that the Court affirm Defendant's minimum
term of incarceration but remand for resentencing so that we may correct our error.
Despite our error, we will provide our reasoning for the maximum term of incarceration
imposed as it will apply equally to our resentencing of Defendant shall the Court remand
  ...... - .                   .   -- _.                     "   ......   . _..                       . "...   ....-.

for that purpose.




144   Transcript of Proceedings, In Re: Sentence Colloquy, February 11,2014 (Feck, J.) (hereinafter "Sentencing at
~')at5.

                                                     1/-21
                                                                                   Circulated 12/29/2014 01:42 PM



            Defendant, at sentencing, indicated that he would be returning to his home in
 Landisburg, PA, at the conclusion of his incarceration. 145 We therefore felt it appropriate
 to provide for supervision by Cumberland County Adult Probation for as long as
 statutorily permissible to discourage Defendant from reinitiating contact with the
Prestons upon his release from prison. To that end, we set Defendant's maximum
 sentellceat~3"months.          "Now realizingth!it we ex:c~qe(LthestatJ!torymaximum, upon"
remand we would resentence Defendant to a maximum period of incarceration of 12
months in conformity with the statutory maximum for a misdemeanor of the third degree.
            With respect to running Defendant's sentence consecutively to any other sentence,
that was within our discretion, and we found no reason to allow Defendant to avoid the
consequences of his actions by running his sentence concurrent with any others,
particularly in light of the impact his actions had, and continue to have, on the Prestons.
As Mr. Preston testified at trial, Mrs. Preston has been going to a counselor as a result of
Defendant's actions, and
                     she still is not sleeping the best. She is still afraid. She doesn't
                     know what is going to happen after tomorrow .... She just
                     really is shaken, shaken up by all of this. And we are hoping
                     that she can heal through this and get feeling better. 146
 Defendant should therefore be denied relief on this claim.
                                              CONCLUSION
            This Court concludes that there was sufficient evidence to support the"jury's
verdict of gUilty. This Court further concludes that it property sentenced Defendant to a
minimum sentence of two months in jail and that the sentence imposed shall run
consecutively to any sentence the Defendant is already serving. These issues raised by
Defendant "on "appeal, therefore, "are . without merit: This CoUrt erred, noweVer,in
sentencing ·the Defendant to an upper end sentence of 23 months, as the maximum.
sentence allowed by law for his conviction is 12 months. Accordingly, it is respectfully


145   Sentencing at 8.
146   N.T. at 179.
                                                                            Circulated 12/29/2014 01:42 PM



      requested that the case be remanded to correct the upper end of Defendant's sentence, but
      that in all other respects the Defendant's appeal be denied.


J                                               BY THE COURT,




,I,


            . Matthew P. Smith, Esq.
              Chief Deputy District Attorney

            JgjJ.a1VI. Shugars, Esq.
          Aenior Assistant Public Defender




                                               /1-23
