J-S89022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

FREDERICK MARION BARTON, JR.

                            Appellant                   No. 667 EDA 2016


             Appeal from the Judgment of Sentence January 22, 2016
                 In the Court of Common Pleas of Chester County
               Criminal Division at No(s): CP-15-CR-0002373-2015


BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                              FILED APRIL 26, 2017

       Frederick Marion Barton, Jr. appeals from the January 22, 2016

judgment of sentence entered in the Chester County Court of Common Pleas

following his bench trial conviction for the summary offense of harassment.1

We affirm.

       The trial court set forth the following factual history:

               In this case, the evidence showed that the owner of the
            building where [Barton] resided advised all tenants in May
            2015 that they had to vacate the premises by June 30,
            2015. Despite being aware of this, [Barton] did not leave
            his apartment. All other tenants had vacated the building
            by June 30, 2015.        The locks to all doors, including
            [Barton’s], were changed on July 1, 2015. [Barton] still
            did not leave. He spoke to Rochelle Jones, who used to be
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 2709(a)(1).
J-S89022-16


            the building manager for the building to see if he could
            stay longer, but they were not able to come to an
            agreement. On July 3, 2015, Vincent Taliercio, who was
            the building manager at the time, went to [Barton’s]
            apartment to try to work something out with him. When
            he got to [Barton’s] apartment, he saw a note on the door
            that read “Will be out soon.” He knocked on the door and
            advised who he was and why he was there. [Barton] was
            speaking to him through the door but did not open it. Mr.
            Taliercio used a key to open the door. As soon as he did
            so, [Barton] hit him with a sledgehammer. Mr. Taliercio
            pushed [Barton] back into the room, closed the door and
            called the police.

                When Officer Lydell Nolt of Parksburg Police Department
            arrived at the scene, he saw the sledgehammer in the
            hallway. When he knocked on the door, [Barton] opened
            it and then slammed it in his face and locked it. Worried
            about his safety since he did not know what was going on
            behind the closed door, he used the key to open it. He
            was then able to get [Barton] out of the apartment with
            resistance.

Opinion Pursuant to Pa.R.C.P. 1925, 7/11/16, at 3 (“1925(a) Op.”).

       On January 22, 2016, following a one-day bench trial, the trial court

found Barton guilty of harassment and not guilty of disorderly conduct.2

That same day, the trial court sentenced Barton to 45 to 90 days’

incarceration, with credit for time served.

       Barton raises the following issue on appeal:

            Whether the evidence was sufficient to prove that [Barton]
            intended to “harass, annoy, or alarm” Vincent Taliercio
            when Mr. Barton used a sledgehammer against Mr.
            Taliercio when Mr. Taliercio opened the door to Mr.
            Barton’s apartment?

____________________________________________


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



                                           -2-
J-S89022-16



Barton’s Br. at 4.

      We apply the following standard when reviewing a sufficiency of the

evidence claim:

           [W]hether 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 [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.

Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)) (some

alterations in original).

      A person is guilty of harassment “when, with intent to harass, annoy

or alarm another, the person . . . strikes, shoves, kicks or otherwise subjects

the other person to physical contact, or attempts or threatens to do the

same[.]”    18 Pa.C.S. § 2709(a)(1).     “An intent to harass may be inferred

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



                                       -3-
J-S89022-16



719, 721 (Pa.Super. 2013) (quoting Commonwealth v. Lutes, 793 A.2d

949, 961 (Pa.Super. 2002)).

       Barton contends that the Commonwealth failed to establish that he

had an intent to “harass, annoy or alarm” Taliercio when he struck him.3

Barton maintains that the evidence established that he struck Taliercio

because he “was angry or upset” as Taliercio, whom he did not know, had

opened Barton’s door. Barton’s Br. at 16-17.

       In Commonwealth v. Blackham, 909 A.2d 315, 317, 319 (Pa.Super.

2006), this Court concluded there was sufficient evidence of physical contact

with intent to harass, annoy, or alarm where, after observing an altercation

between the victim and other children, the appellant grabbed the victim’s

arm, tugged on the victim’s arm as they went up the street, and grabbed the

back of the victim’s neck.        Similarly, in Commonwealth v. Kirwan, 847

A.2d 61, 63-64 (Pa.Super. 2004), this Court found sufficient evidence that

the appellant acted with an intent to alarm where, as he was trying to leave

the marital residence, the appellant lifted his wife and threw her to the

ground.

____________________________________________


       3
         Barton concedes that the evidence established that he subjected
Taliercio to physical contact. Barton’s Br. at 12. Although Taliercio testified
that the injuries for which he sought medical attention were to his back,
from when he pushed Barton back into the room, he also testified that the
sledgehammer made contact with the front of his hand. N.T., 1/22/16, at
14.




                                           -4-
J-S89022-16



      Here, the Commonwealth presented sufficient evidence to support the

conviction, including that Barton remained in the apartment after receiving

notice that his lease was terminated; Barton placed a note on his door

stating: “Will be out soon”; Taliercio identified himself as the building

manager and explained why he was at the door; and Barton swung a

sledgehammer and hit Taliercio when he opened door.         Although Barton

presented evidence that he struck Taliercio because Taliercio, whom Barton

did not know, opened the door to Barton’s apartment, the court as fact-

finder was free to credit the testimony presented by the Commonwealth.

See Best, 120 A.3d at 341. We conclude that a fact-finder could find that

the Commonwealth established beyond a reasonable doubt that Barton had

an intent to harass, annoy, or alarm Taliercio. See Blackham, 909 A.2d at

319; Kirwan, 847 A.2d at 63-64.

     Barton’s reliance on Commonwealth v. Battaglia, 725 A.2d 192

(Pa.Super. 1999), is misplaced.     In Battaglia, a police officer saw the

appellant blowing a “cloud” of leaves from an apartment building lawn into

the street. 725 A.2d at 193. When asked to stop blowing the leaves into

the street, the appellant complied and collected the leaves from the road.

Id. The appellant, however, refused to clean leaves from a neighbor’s yard

across the street, and eventually said he was going to “fucking sue the

police” for bothering him. Id. The police officer arrested the appellant. Id.

At the police station, the appellant grabbed a pen from an officer. Id. The

appellant was charged with harassment under 18 Pa.C.S. § 2709(a)(3),

                                    -5-
J-S89022-16



which requires that the Commonwealth establish that the defendant

“engage[d] in a course of conduct or repeatedly commit[ted] acts which

alarm or seriously annoy such other person and which serve no legitimate

purpose.” The alleged course of conduct included: stating he was going to

“fucking sue” the police, grabbing a pen from a police officer’s hand, and

refusing to remove leaves from a neighbor’s lawn after being directed to by

a police officer. Id. at 194. This Court determined that the Commonwealth

failed to present sufficient evidence of harassment. Id. We found that the

appellant’s comment that he was going to sue the police was “a response to

a perceived harassment,” and found the evidence did not establish the

comment was of a “non-legitimate nature.”        Id.   Next, we found that the

physical contact of touching the police officer’s hand was de minimis, and

the Commonwealth failed to establish the appellant grabbed the pen to

harass, annoy or alarm the officer. Id. at 195. Finally, we found that the

police officer’s authority to require the appellant to rake a neighbor’s yard

was questionable and noted that there was no proof the appellant refused

with an intent to harass, annoy, or alarm. Id.

     The appellant in Battaglia was charged with a different section of the

harassment statute than Barton – which required the Commonwealth to

prove a course of conduct rather than physical contact. Further, Battaglia




                                    -6-
J-S89022-16



is factually distinguishable – including that, unlike grabbing a pen, striking

someone with a sledgehammer is not de minimis.4

       In sum, we conclude the Commonwealth presented sufficient evidence

that Barton struck Taliercio with an intent to harass, annoy, or alarm.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




____________________________________________


       4
        Barton’s reliance on Commonwealth v. Showalter, 418 A.2d 580
(Pa.Super. 1980), also is misplaced. In Showalter, the trial court had
instructed the jury on aggravated assault, simple assault, and assault
committed while in a fight or scuffle, and the jury convicted the appellant of
simple assault. 418 A.2d at 582. Unlike the issue raised in this case, the
Showalter Court did not address whether sufficient evidence supported a
harassment conviction. Rather, the issue on appeal was whether the court
erred in failing to instruct the jury as to harassment. The appellant claimed
that harassment was a lesser-included offense of assault and that the trial
court erred by not instructing the jury. Id. This Court found that the trial
court did not err because neither version of the events indicated that the
appellant acted with an intent to harass, annoy, or alarm the victim. Id.




                                           -7-
