J-S49041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLENE MAY SMITH,

                            Appellant                No. 223 MDA 2015


          Appeal from the Judgment of Sentence of December 11, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000935-2014


BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 20, 2015

       Appellant, Charlene May Smith, appeals from the judgment of

sentence entered on December 11, 2014, following her bench trial

convictions for two summary counts of harassment.1         Upon review, we

affirm.

       We briefly summarize the facts and procedural history of this case as

follows.     On January 11, 2014, police, firefighters and members of

emergency medical services (EMS) responded to Appellant’s house upon

receiving a telephone call that Appellant’s husband (Mr. Smith) had gone

into cardiac arrest.        Once inside, police and firefighters implemented

standard practices to secure the area and to keep others from interfering

____________________________________________


1
    18 Pa.C.S.A. § 2709.
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with medical care. Mr. Smith was in a bedroom on the second floor. There

was blood on Mr. Smith, the bed, and the wall.       EMS suspected that a

firearm might have been involved. Sergeant Mark Stonebreaker, an officer

with the Highspire Police Department, told family members to remain

downstairs.    He positioned himself at the top of the stairs to secure the

scene while EMS performed CPR on Mr. Smith. Appellant attempted to come

upstairs, but Sergeant Stonebreaker directed her three or four times to stay

on the first floor or he would arrest her. Appellant continued up the stairs

and Sergeant Stonebreaker told her that she could not see Mr. Smith.

Appellant clenched her fists, continued to ascend the stairs, and said, “I’m

gonna see my husband, you can’t stop me.”           A brief scuffle ensued.

Sergeant Stonebreaker physically moved Appellant down a few stairs, but

she steadfastly held onto the banister.       Sergeant Stonebreaker told

Appellant to remove her hand from the railing or he would use a taser on her

hand.     When Appellant refused, Sergeant Stonebreaker tased Appellant’s

hand, she released the banister, screamed in pain, yelled profanities at

Sergeant Stonebreaker, and proceeded back downstairs. The EMS workers,

hearing the fray between Appellant and Sergeant Stonebreaker and fearing

for their safety, barricaded the bedroom door where they were performing

CPR.    Ultimately, EMS was unable to resuscitate Mr. Smith.    The coroner

later determined that Mr. Smith died of complications from lung cancer.

        The Commonwealth initially charged Appellant with resisting arrest,

criminal attempt – obstructing emergency services, harassment – subjecting

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others to physical contact, harassment – course of conduct with no

legitimate purpose, and obstructing emergency services. Prior to trial, the

Commonwealth withdrew all of the charges, except the two summary

harassment offenses.        Following a bench trial, the court found Appellant

guilty of both charges.           The trial court sentenced Appellant to two

consecutive terms of three months’ probation. This timely appeal resulted.2

       On appeal, Appellant presents the following issues for our review:

         A. Whether the Commonwealth presented insufficient
            evidence to prove each and every element of [s]ummary
            [h]arassment where [] Appellant did not strike, shove,
            kick or cause physical contact nor attempt[ed] to do so,
            nor threaten[ed] to do so, and where [] Appellant’s only
            intent was to see her dead husband?

         B. Whether the Commonwealth presented insufficient
            evidence to prove [h]arassment by a course of conduct
            where [] Appellant engaged in one single act of
            attempting to see her dead husband?

Appellant’s Brief at 6.

       Appellant’s issues challenge the sufficiency of the evidence to support

each of her convictions for harassment. Accordingly, we will examine them

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2
  Appellant filed a notice of appeal on Monday, January 11, 2015. The notice
of appeal was timely because Appellant had 30 days from the date of
judgment of sentence to file her notice of appeal and the thirtieth day fell on
a Saturday. See Pa.R.A.P. 903 (time for appeal); see also 1 Pa.C.S.A.
§ 1908 (computation of time). On January 14, 2015, the trial court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on February 2,
2015. On February 25, 2015, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).



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together.3    First, Appellant claims that she did not engage in a course of

conduct to support her conviction under 18 Pa.C.S.A. § 2709(a)(3).          More

specifically, she claims that her actions “consisted of a single attempt to

proceed up the steps of her own house in order to see her dead/dying

husband.”     Id. at 12.      Appellant claims that the incident with Sergeant

Stonebreaker lasted anywhere from one to 10 minutes.              Id. at 12, 16.

Next, Appellant claims that “at no point did [she] strike, kick or otherwise

subject another to physical contact” to support her conviction pursuant to 18

Pa.C.S.A. § 2709(a)(1).           Id. at 13.     Appellant argues that Sergeant

Stonebreaker was the aggressor.            Id. Thus, Appellant argues, “the issue

becomes whether she attempted or threatened” physical contact. Id. at 14.

Appellant suggests that the EMS misapprehended the medical emergency as

possibly involving a gunshot wound and, as a result, “the EMS and Officer

Stonebreaker incorrectly and without cause assumed [] Appellant was a

threat to her dying/dead husband or the EMS and police.” Id.

       Our standard of review is well settled:

         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
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3
  Despite presenting the issues as separate questions for review, Appellant
argues both issues simultaneously. For future reference, we direct counsel
to our rules of appellate procedure. See Pa.R.A.P. 2119(a) (“The argument
shall be divided into as many parts as there are questions to be argued[.]”).
However, because there is no impediment to our review, we will examine
both issues as presented.



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        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. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014)

(citation, brackets, and original emphasis omitted).

      The trial court convicted Appellant of two different counts of

harassment, 18 Pa.C.S.A. §§ 2709(a)(1) and (a)(3), which provide in

pertinent part:

        (a) Offense defined.--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;

                          *           *           *

            (3) engages in a course of conduct or repeatedly
            commits acts which serve no legitimate purpose[.]




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18 Pa.C.S.A. § 2709.

      “An intent to harass may be inferred from the totality of the

circumstances.”    Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super.

2013). “‘Course of conduct’ means a pattern of actions composed of more

than one act over a period of time evidencing a continuity of conduct, a

single act will not support a conviction.” Commonwealth v. Battaglia, 725

A.2d 192, 194 (Pa. Super. 1999).

      In this case, regarding Section 2709(a)(1), the trial court determined:

        Appellant, while understandably upset as she suspected her
        husband was dead and wanted to be near him, was angry
        and red-faced. She ascended the stairs of the home despite
        repeated warnings not to do so. She clenched her fists in
        anger and even raised one hand as if to strike the officer.
        All of this, she did with the intent to alarm Sgt.
        Stonebreaker enough to move him out of her way. Indeed,
        it is clear that the EMS workers, the firefighters and the
        police officer on the scene were all alarmed by Appellant’s
        actions. They all testified that they feared for either their
        own safety or the safety of the EMS workers and the safety
        of the patient.

        Certainly raising her fist was a threat or an attempt to
        subject Sgt. Stonebreaker to physical contact and, while he
        acknowledged that he did ultimately initiate physical
        contact, he felt threatened and he was subjected to physical
        contact and her resistance to removing her during the tussle
        on the landing.

Trial Court Opinion, 2/25/2015, at 9-10.

      Regarding Section 2709(a)(3), pertaining to a course of conduct, the

trial court concluded:

        Appellant continued to ascend the stairs; she grasped the
        spindles of the banister to prevent Sgt. Stonebreaker from

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        removing her and did this all for no legitimate purpose.
        While she testified that her purpose was to be with her dead
        husband, and we sympathize with her, there is no
        legitimate purpose, there is no constitutionally protected
        right, to disobey a police officer who is trying to allow EMS
        workers to revive [her] husband.        Her actions actually
        forced the EMS workers to stop attempting resuscitation in
        order to barricade themselves in the bedroom with her
        husband.

Id. at 10.

      We agree that there was sufficient evidence to support both

harassment convictions.      Captain Brian Ceace, of the Highspire Fire

Department, was a first responder on the scene.       N.T., 12/102014, at 6.

Captain Ceace testified that Sergeant Stonebreaker was on hand to secure

the scene. Id. at 15. Captain Ceace testified that Sergeant Stonebreaker

“asked [Appellant] to stay downstairs [and] [l]et EMS do their job.” Id. at

17. Sergeant Stonebreaker repeated himself three or four times. Id. When

Appellant persisted, Sergeant Stonebreaker told her that he would have to

arrest her if she continued. Id. at 18.     Captain Ceace also told Appellant

“to please listen to the officer.”   Id. at 19.   Appellant continued up the

stairs and held onto the railing.    Id. at 21.   Sergeant Stonebreaker told

Appellant to remove her hands from the banister or he would use a taser.

Id. at 21-22. Captain Ceace opined that Sergeant Stonebreaker used every

means necessary to diffuse the situation before ultimately tasing Appellant.

Id. at 24.   Captain Ceace also testified that he witnessed Appellant “ball up

her fists” and it was possible that she was going to take a swing at Sergeant

Stonebreaker. Id. at 31.


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      Sergeant Stonebreaker testified similarly. He stated that he pled with

Appellant not to come upstairs and to allow EMS to do their job

uninterrupted. Id. at 113-114. Appellant continued up the stairs, stating,

“I’m gonna see my husband and you can’t stop me.” Id. at 116. Sergeant

Stonebreaker described Appellant as “very red in the face, very angry.” Id.

He “could see that her hands [were] clenched into fists [and] her teeth were

clenched.” Id. “[A]t one point, she brought a hand up [] to strike [Officer

Stonebreaker] or push past” him. Id. at 128. Sergeant Stonebreaker “was

expecting an attack was imminent.” Id. When he tried “to get her turned

around to get her to go back down the steps[,]” there was a brief “tussle on

the staircase[.]” Id. at 117. Appellant grabbed the banister, would not let

go, and Sergeant Stonebreaker warned her that he would have to arrest her.

Id. at 118. Thereafter, Sergeant Stonebreaker again warned Appellant “at

least on three occasions” he would use a taser. Id. at 122. When Appellant

still refused, Sergeant Stonebreaker used the taser on Appellant’s hand. Id.

      The foregoing establishes that police told Appellant that she could not

come upstairs so as not to interfere with EMS. She exclaimed that she was

going to do so despite these warnings and that police could not stop her.

When we examine these words in conjunction with Appellant’s physical

actions – continuing up the stairs despite repeated warnings, clenching her

fists and teeth, and raising her arm to the officer – it is clear that Appellant

attempted or threatened physical contact under Section 2709(a)(1).           In

addition,   while   Sergeant   Stonebreaker   may   have   physically   touched

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Appellant first, Sergeant Stonebreaker testified that a brief tussle resulted.

Hence, there was physical contact by Appellant despite police commands.

Moreover, regarding course of conduct, the record belies Appellant’s

characterization of the altercation.           While she claims there was a single

attempt to proceed up the steps, it is obvious from the record that she

continued to do so multiple times despite continued warnings, police

intervention, and threats of arrest and being tased. This was not a single

attempt at climbing the stairs and then acquiescence.                   Appellant’s

persistence shows she repeatedly committed acts which served no legitimate

purpose4 showing a course of conduct to support a conviction under Section

2709(a)(3).       Accordingly, we reject Appellant’s claim that there was

insufficient evidence to support both summary harassment convictions.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2015
____________________________________________


4
     Appellant does not challenge the trial court’s determination that her
actions served no legitimate purpose. Thus, we need not address this
element of harassment under, Section 2709(a)(3).



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