J-S22009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

BILL HOLTZMAN

                            Appellant                    No. 803 WDA 2014


             Appeal from the Judgment of Sentence April 15, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001497-2013


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                                    FILED June 1, 2015

        Appellant, Bill Holtzman, appeals from the judgment of sentence

entered April 15, 2014, by the Honorable David R. Cashman, Court of

Common Pleas of Allegheny County. We affirm.

        The trial court set forth the facts of this matter as follows.

               The testimony at trial established that security officer
        Melanie Phillips, … an employee of Magee Woman’s Hospital
        UPMC, … along with Brian Zemenkowski, … a police officer for
        Magee, were working at Magee on January 31, 2013. Both
        Phillips and Zemenkowski responded to a call involving
        Holtzman, who was [an elderly] patient in the hospital.
        Holtzman was attempting to exit the hospital through an area
        that lead into the labor and delivery area of the hospital.
        Holtzman was obviously agitated. At one point he pointed a
        lighter at Phillips and stated, “I never burned a bitch before, but
        I have [] killed a few.” Phillips testified that Holtzman made
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*
    Retired Senior Judge assigned to the Superior Court.
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        pretty threatening comments to her and was pacing up and
        down the hallway with a cane.

               Phillips and Zemenkowski left the area at some point after
        it appeared that Holtzman had been sufficiently calmed down.
        Phillips testified that they returned on a second occasion, where
        they observed Holtzman swinging the cane that he carried,
        hitting medical equipment and swinging it at people that were
        walking around. Zemenkowski grabbed the cane, prompting
        Holtzman to spin around face-to-face with Phillips. Holtzman
        lunged at Phillips in an apparent attempt to choke her, thereby
        making contact with her left jaw and cheek area.           Phillips
        testified that she had red marks in that area. Zemenkowski
        corroborated the existence of these marks and photographed
        those marks.

              Zemenkowski also testified at the trial that Holtzman was
        wandering around in the hall, going in and out of other patient’s
        rooms. He testified that Holtzman was: “Being a little disorderly,
        not following the rules. The staff wanted him to go back to his
        room.” Zemenkowski testified that he tried to talk Holtzman into
        putting his cane down but that Holtzman continued to swing the
        cane around. When Holtzman refused to put the cane down,
        Zemenkowski testified that he grabbed the cane at the first
        opportunity. He testified that this was the point when Holtzman
        grabbed Phillips.

Trial Court Opinion, 12/9/14 at 1-3.

        As a result of this incident, Holtzman was charged with two counts of

harassment1 and one count of disorderly conduct.2 Following a bench trial,

Holtzman was convicted of all charges and sentenced to time served. This

timely appeal followed.

        On appeal, Holtzman raises the following issue for our review.


____________________________________________


1
    18 Pa.C.S.A. § 2709(a)(1).
2
    18 Pa.C.S.A. § 5503(a)(1).



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      Was the evidence insufficient to support a conviction for
      harassment or disorderly conduct when the appellant had no
      intent to harass, annoy, or alarm anyone, but was merely trying
      to leave the hospital?

Appellant’s Brief at 5.

             The standard we apply when 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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      The crimes code defines the offense of harassment, as relevant to this

case, as follows.

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         (a) Harassment—A person commits the crime of
         harassment when, with intent to harass, annoy or alarm
         another, the person:

            (1) strikes, shoves, kicks, or otherwise subjects the
            other person to physical contact, or attempts or
            threatens to do the same.

18 Pa.C.S.A. § 2709 (a)(1). “An intent to harass may be inferred from the

totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721

(Pa. Super. 2013) (citation omitted).

      “A person is guilty of disorderly conduct if, with intent to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

(1) engages in fighting or threatening, or in violent or tumultuous

behavior….” 18 Pa.C.S.A. § 5503(a)(1).

      The mens rea requirement of Section 5503 demands proof that
      appellant by [his] actions intentionally or recklessly created a
      risk of causing or caused a public inconvenience, annoyance or
      alarm. The specific intent requirement of this statute may be
      met by a showing of a reckless disregard of the risk of public
      inconvenience, annoyance, or alarm, even if the appellant’s
      intent was to send a message to a certain individual, rather than
      to cause public inconvenience, annoyance, or alarm.

Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005)

(citations omitted).

      Holtzman maintains that he was merely trying to leave the hospital,

and therefore had no intent to harass, annoy, or alarm anyone. He further

argues that hospital staff “over-reacted” and escalated the situation into a

physical incident. In support of his argument, Holtzman relies on, among

other things, this Court’s decision in Commonwealth v. Wheaton, 598

A.2d 1017, 1019-20 (Pa. Super. 1991), in which we held that defendant’s

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threats to sue water authority trustees were insufficient to establish intent

for a harassment conviction, where defendant was embroiled in a dispute

with the water authority and comments were made in effort to keep the

water authority from terminating water service.         Holtzman argues by

analogy that although his actions may have caused annoyance to hospital

staff or other patients, his conduct merely reflected his attempt to leave the

hospital, rather than an intent to annoy or harass.

      We are unpersuaded by Holtzman’s argument. While we are not at all

dismissive of Holtzman’s emotional state or physical and mental history, his

actions in verbally threatening and physically striking hospital staff, and in

swinging his cane about at other people and objects, clearly reflect his intent

to annoy and alarm others. Holtzman’s physical actions and verbal threats

certainly rise above mere complaints or requests to leave the hospital. We

further find no evidence to suggest that hospital staff “overreacted” or

otherwise unnecessarily escalated the situation.        Although Holtzman’s

treating physician, Peter Tanzer, testified that he issued instructions to

hospital staff that Holtzman was not to be confronted and was allowed to

leave if he so desired, see N.T., Trial, 4/15/14 at 41, there is no evidence

that the security guards involved in this incident were alerted to these

instructions.   Regardless, Dr. Tanzer’s instructions do not in any way

mitigate or otherwise negate Holtzman’s intent to annoy or alarm, as

reflected by the totality of the circumstances.




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       As we find Holtzman’s aggressive physical conduct and verbal threats

clearly evinced an intent to annoy or alarm beyond the expression of mere

annoyance, we find no basis on which to disturb his conviction of

harassment and disorderly conduct.3

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2015




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3
  As Holtzman argues only that the evidence was insufficient to support the
mens rea requirement of his convictions, we need not address the remaining
elements of the crimes further.



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