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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
JASON DANIEL ARTZ                           :
                                            :
                          Appellant         :     No. 919 MDA 2015

              Appeal from the Judgment of Sentence April 14, 2015
              In the Court of Common Pleas of Cumberland County
                Criminal Division No(s): CP-21-CR-0003015-2014

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 09, 2016

         Appellant, Jason Daniel Artz, appeals from the Judgment of Sentence

entered on April 14, 2015, in the Cumberland County Court of Common

Pleas.     Following a trial, the jury convicted Appellant of one count of

Harassment,1 a third degree misdemeanor.            The trial court sentenced

Appellant to a term of one week to one year of incarceration in the

Cumberland County Prison, to pay the costs of prosecution, and a fine of

$100.00. In addition, the court ordered Appellant to have no contact either

directly or indirectly with any party to this case, including the victim,

Corporal Douglas Howell, or any members of his family, and to undergo a




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2704(a)(4).
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mental health evaluation and comply with any recommended treatment. We

affirm.

      The trial court set forth the facts and procedural history as follows:

          The present matter concerns [Appellant’s] arrest and
          conviction for Harassment, a misdemeanor of the third
          degree, stemming from a phone call that [Appellant] made
          to Corporal Howell on August 20, 2014. On the date in
          question, an unnamed male called the Pennsylvania State
          Police Barracks in Carlisle and asked to speak with
          Corporal Howell.    After being informed that Corporal
          Howell was not working at the barracks, the caller was
          given a phone number where he could directly reach
          Corporal Howell. A short time later, on the same phone
          line that was given out by the State Police Barracks,
          Corporal Howell received a phone call from a blocked
          number. Corporal Howell testified that the entire phone
          call with the unnamed caller consisted of the following:

            Hey Dougie, you said you were always going to be
            here, but you are not. You said you were always
            going to win, but now you lose. Fuck you, Dougie.
            Fuck you. Fuck you, Dougie. Fuck you, Dougie.

          Furthermore, Corporal Howell testified that the caller
          spoke very loudly, and was “basically screaming into the
          phone.” Because the phone call was made to Corporal
          Howell’s direct number, it was not recorded by the State
          Police’s recording system.

          Although the caller did not state his name and the
          incoming number was blocked, Corporal Howell testified
          that he immediately recognized the voice as belonging to
          [Appellant] based on their numerous previous encounters;
          this was so despite the fact that Corporal Howell had not
          seen or spoken to [Appellant] in roughly two years.
          Corporal Howell also testified to the fact that he felt
          threatened by the phone call from [Appellant], specifically
          the portion where [Appellant] said “you said you were
          always going to win, but now you lose.” Corporal Howell
          testified that he feared that [Appellant’s] comments
          implied that [Appellant] would do something to “make me


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       lose.” As a result of the phone call, Corporal Howell
       immediately called his family to warn them to look out for
       [Appellant], since Corporal Howell feared for their safety.

                                   ***

       After the Commonwealth [ ] rested its case, [Appellant]
       took the stand and admitted that he was the unnamed
       caller who called both the Pennsylvania State Police
       Barracks and Corporal Howell on the day in question.
       Although [Appellant] admitted that he called Corporal
       Howell directly at a different station than the Pennsylvania
       State Police Barracks in Carlisle, rather than leave a
       message for him, he denied making the harassing
       statement as testified to by Corporal Howell. Instead,
       [Appellant] testified that the nature of his call was non-
       threatening, and he was simply trying to get Corporal
       Howell to leave him alone. Specifically [Appellant] said
       that he was concerned because he had seen unmarked
       police vehicles regularly drive past his home and stop at
       the end of the driveway, and he believed that Corporal
       Howell was responsible for these vehicles showing up at
       his home. The Commonwealth contradicted this statement
       on rebuttal.      Trooper Timothy Janosco (hereinafter
       “Trooper Janosco”) testified on rebuttal that he did drive
       past [Appellant’s] home in an unmarked police vehicle, but
       that it was after [Appellant] had already placed the phone
       call to Corporal Howell. Furthermore, both Corporal Howell
       and Trooper Jansoco stated on rebuttal that they had not
       driven unmarked police vehicles past [Appellant’s] home
       immediately prior to the August 20, 2014 phone call.

       On the stand, [Appellant] also admitted that he had not
       had any dealings with Corporal Howell in approximately
       three years before this incident.       [Appellant] further
       admitted he dialed “Star 67” before calling Corporal Howell
       on the day in question so that his phone number wasn’t
       available to Corporal Howell.

       At the close of evidence, [Appellant] made a Motion for
       Directed Verdict/Motion for Judgment of Acquittal, which
       was denied by the [c]ourt. Based on all of the evidence
       presented at trial, the jury found [Appellant] guilty of
       Harassment.     [Appellant] filed Post-Sentence Motions,


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         including a Motion for Judgment of Acquittal, which was
         also denied. This appeal followed.

Trial Ct. Op., 9/2/15, at 2-5 (footnotes omitted).

      Appellant raises the following four issues on appeal:

         1. Did the trial court err when it denied Appellant’s Motion
         for Judgment of Acquittal?

         2. Was the verdict against the weight of the evidence
         warranting reversal or a new trial?

         3. Even in the light most favorable to the Commonwealth,
         was [the] evidence insufficient to support the Harassment
         verdict charged under Section 2709(a)(4)?

         4. Did the trial court err in denying Appellant’s Motion for
         a new trial after allowing the Commonwealth to reopen its
         case to include the direct testimony of Deputy Sheriff
         Marshall and additional testimony of Cpl. Howell because
         the testimony was not related to the subject phone call
         and because it was unduly prejudicial?

Appellant’s Brief at 9.

      In his first issue, Appellant argues that the trial court erred in denying

his   Motion    for   Judgment   of   Acquittal.   Appellant   avers   that   the

Commonwealth failed to present sufficient evidence that he had telephoned

Corporal Howell with the “intent to harass, annoy, or alarm, plus the alleged

language uttered was not lewd, lascivious, threatening, or obscene under

the statute.”    Id. at 15.   Appellant argues that, even accepting Corporal

Howell’s testimony as to the nature and content of the call as true,

Appellant’s words do not constitute harassment. Id. at 16. Appellant posits




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that “Fuck you, Dougie” is not obscene language and “[n]othing in the

alleged conveyance threatens to harm the complainant.” Id.

      “A motion for judgment of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only

in cases in which the Commonwealth has failed to carry its burden regarding

that charge.” Commonwealth v. Foster, 33 A.3d 632, 634-35 (Pa. Super.

2011). Therefore, our standard of review is to evaluate the record “in the

light most favorable to the verdict winner giving the prosecution the benefit

of   all   reasonable   inferences      to   be     drawn         from   the   evidence.”

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (quoting

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

      In the instant matter, in order to sustain its burden of proof, the

Commonwealth was required to prove that “. . .with the intent to harass,

annoy or alarm another, [Appellant]. . .communicated to or about such

other person any lewd, lascivious, threatening or obscene words, language,

drawings or caricatures. . .” 18 Pa.C.S. § 2709(a)(4). Appellant’s “intent to

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

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

      In its Opinion in support of the guilty verdict, the trial court highlighted

the evidence presented by the Commonwealth at trial. The court noted that

Appellant “did not merely say ‘fuck you’ to an officer in the heat of the

moment, but rather specifically sought out Corporal Howell after two years



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of having no contact with him[.]” Trial Ct. Op. at 7. The testimony elicited

at trial revealed that Corporal Howell interpreted Appellant’s comment that

“you said you were always going to win, but now you lose[ ]” as meaning

that Appellant planned to do something to make him lose. Thus, the trial

court concluded that “it was not merely the ‘fuck you’ language that made

Corporal Howell feel threatened, it was the attendant circumstances and

[Appellant] telling Corporate Howell that he would now ‘lose,’ which Corporal

Howell believed was a threat to his or his family’s safety. Id.

      The trial court opined that, in light of the totality of the circumstances,

the evidence was “sufficient to send the question to the jury to decide [ ]

whether such language amounted to a threat under the circumstances.

Such facts were equally sufficient for the jury to deduce, as they did, that

such conduct by [Appellant] was obscene or threatening.” Id. We agree.

      Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, we conclude that the Commonwealth presented sufficient

evidence—including Corporal Howell’s testimony about the content and

nature of the call he received from Appellant, the history of the parties’

previous interactions, and the efforts to which Appellant went to seek out

Corporal Howell and obfuscate his identity—for the jury to convict Appellant

of Harassment.

      In his second issue, Appellant argues his conviction was against the

weight of the evidence because the jury disregarded the testimony of



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Appellant and Appellant’s character witnesses, and placed undue emphasis

on the testimony of the Commonwealth’s witnesses. Appellant claims that

the jury “ignored the reasonable doubt created by testimony by Appellant

and Appellant’s character witnesses[.]” Appellant’s Brief at 18.

      When considering challenges to the weight of the evidence, we apply

the following precepts:

         The weight of the evidence is exclusively for the finder of
         fact[,] who is free to believe all, none or some of the
         evidence and to determine the credibility of witnesses.

         Appellate review of a weight claim is a review of the
         exercise of discretion, not the underlying question of
         whether the verdict is against the weight of the evidence.
         Because the trial judge has had the opportunity to hear
         and see the evidence presented, an appellate court will
         give the gravest consideration to the findings and reasons
         advanced by the trial judge when reviewing a trial court’s
         determination that the verdict is against the weight of the
         evidence.

         One of the least assailable reasons for granting or denying
         a new trial is the lower court’s conviction that the verdict
         was or was not against the weight of the evidence and that
         a new trial should be granted in the interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(internal quotation marks and citations omitted). Further, “[i]n order for a

defendant to prevail on a challenge to the weight of the evidence, the

evidence must be so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.”    Id. at 546 (internal quotation marks and

citation omitted).




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      Here, the trial court ruled against Appellant’s weight of the evidence

claim when it denied Appellant’s Post-Sentence Motion.          We conclude the

trial court did not abuse its discretion when it found that its sense of justice

was not shocked by the jury’s determination that the testimony of Corporal

Howell and Trooper Janosco was more credible than that of Appellant. Trial

Ct. Op. at 8.   Furthermore, it was not an abuse of discretion for the trial

court to determine that the evidence that Appellant sought out Corporal

Howell “in a secret, deliberate manner, after several years of not having

contact with him and threatening the Corporal’s safety” fully supported

Appellant’s conviction. Id.

      Third, Appellant challenges the sufficiency of the Commonwealth’s

evidence in sustaining a conviction against him for Harassment. Appellant

claims that, “even accepting complainant’s recollection of the phone call as

true, given the Commonwealth’s status as the verdict-winner, there is no

indication   that   Appellant   intended   to   ‘harass,   annoy,   or   threaten.”2

Appellant’s Brief at 21. Appellant alleges that the Commonwealth failed to

prove beyond a reasonable doubt that Appellant had the “requisite intent of

committing a harassing, alarming or annoying communication.” Id.



2
  Appellant relies on Commonwealth v. Fenton, 750 A.2d 863 (Pa. Super.
2000), in support of his claim that yelling “Fuck you, Dougie” does not
constitute Harassment under Section 2709(a)(4). We agree with the trial
court that the holding in Fenton is not controlling of the instant matter.
See Trial Ct. Op. at 6-7.



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      “Whether sufficient evidence exists to support the verdict is a question

of law; our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013).            We

review the evidence in the light most favorable to the verdict winner to

determine whether there is sufficient evidence to allow the jury to find every

element of a crime beyond a reasonable doubt. Commonwealth v. Cahill,

95 A.3d 298, 300 (Pa. Super. 2014).

         In applying the above test, we may not weigh the evidence
         and substitute our judgment for the factfinder. In addition,
         we note that the facts and circumstances established by
         the Commonwealth need not preclude every possibility of
         innocence. Any doubts regarding a defendant’s guilt may
         be resolved by the fact-finder unless the evidence is so
         weak and inconclusive that as a matter of law no
         probability of fact may be drawn from the combined
         circumstances.     The Commonwealth may sustain its
         burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the finder of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Id. (citation omitted).

      After reviewing the record, and as discussed supra, we conclude the

Commonwealth presented sufficient evidence to permit the jury to find every

element of Harassment. As the trial court aptly noted,

         The Commonwealth presented competent evidence that
         the contents of the phone call were threatening to Corporal
         Howell, specifically in light of the anonymous nature of the
         call, the tone and volume of the call, and the fact that


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         Corporal Howell had not spoken to [Appellant] in two
         years. The circumstances surrounding the phone call,
         including [Appellant’s] efforts to obtain Corporal Howell’s
         phone number after having no contact with him for two
         years, the fact that [Appellant] blocked his phone number
         so that Corporal Howell could not see who was calling, and
         the loud tone that [Appellant] used when speaking, also
         support the finding that [Appellant] had the requisite
         intent to harass, annoy, or alarm Corporal Howell by
         making the call. [Appellant] achieved his goal because the
         phone call did alarm Corporal Howell such that he phoned
         his family because he felt their safety had been
         threatened. The jury clearly did not believe [Appellant’s]
         testimony regarding his recollection of the phone call to
         Howell, which was well within its prerogative as the fact
         finder. The verdict was supported by sufficient evidence [
         ].

Trial Ct. Op. at 10.

      Fourth, Appellant argues the trial court erred when it denied

Appellant’s Motion for a New Trial after the trial court permitted the

Commonwealth to reopen its case to permit Deputy Sheldon Marshall and

Corporal Howell to testify about Appellant’s conduct during trial. Appellant

specifically claims that the testimony was not relevant and was unduly

prejudicial. Appellant’s Brief at 22-23.

      The trial court summarized the facts as follows:

         During trial, it was brought to the [c]ourt’s attention that
         [Appellant] had made eye contact with Corporal Howell in
         the courtroom and mouthed the word “homo” to him
         during a sidebar. This fact was brought to the [c]ourt’s
         attention after the Commonwealth had originally rested its
         case, but before [Appellant] opened his case. This [c]ourt
         found the proposed testimony to be relevant, and that the
         probative value outweighed any prejudice; accordingly this
         [c]ourt allowed the Commonwealth to reopen its case to
         call Corporal Howell and Deputy Sheriff Sheldon Marshall


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         (hereinafter   “Deputy     Marshall”)  to  testify   about
         [Appellant’s] conduct and statements in the courtroom
         before [Appellant] opened his defense. Deputy Marshall
         testified that he does not know either [Appellant] or
         Corporal Howell personally, and that he witnessed
         [Appellant] make eye contact with Corporal Howell in the
         courtroom and mouth the word “homo” towards him [ ].
         Deputy Marshall testified that Corporal Howell did nothing
         that would have caused [Appellant] to do this, and said
         nothing in return to [Appellant]. Corporal Howell testified
         that he felt threatened by [Appellant’s] conduct.
         [Appellant] later testified that he made eye contact with
         Corporal Howell in the courtroom, but denied saying
         anything to him during the trial.

Trial Ct. Op. at 3.

      The admission of evidence is within the sound discretion of the trial

court and may only be reversed if it can be shown that the trial court abused

its discretion. Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super.

2014) (citation omitted). “An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.” Id. at

10.

      The Pennsylvania Rules of Evidence allow for the admission of

evidence that is relevant.    Pa.R.E. 402.      However, a “court may exclude

relevant evidence if its probative value is outweighed by the danger of . . .

unfair prejudice . . .” Pa.R.E. 403.

      The trial court explained its evidentiary ruling to admit the testimony

about Appellant’s courtroom behavior as follows:


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           The testimony was allowed as to [Appellant’s] intent
           toward Corporal Howell in “harassing” or “annoying” him.
           Corporal Howell had previously testified that [Appellant’s]
           phone call on the day in question was unprovoked, since
           the two hadn’t spoken in two years. Deputy Marshall
           testified that [Appellant’s] actions in the courtroom were
           unprovoked.      The evidence was not overwhelmingly
           prejudicial to [Appellant] in light of the fact that they jury
           was free to witness [Appellant’s] conduct during trial and
           may have seen the conduct testified to anyway. The
           probative value of the evidence as to [Appellant’s] intent
           outweighed any potential for prejudice.

Id. at 12.

      We conclude that the trial court did not abuse its discretion in

permitting the Commonwealth’s witnesses to testify about Appellant’s in-trial

conduct.     The trial court appropriately concluded that this evidence was

relevant to Appellant’s ongoing animus toward Corporal Howell and his

intent to harass him at the time of the subject phone call.                     Cf.

Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997) (“Although

evidence of a subsequent offense is usually less probative of intent than

evidence of a prior offense, evidence of a subsequent offence can still show

the defendant’s intent at the time of the prior offense). Moreover, we agree

with the trial court that the potential for prejudice did not outweigh the

probative value of this testimony.

      As Appellant is not entitled to relief on any of his claims, we affirm.




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     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2016




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