J-S21021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KENNETH GERALD LUCHSINGER

                            Appellant                 No. 2093 EDA 2015


            Appeal from the Judgment of Sentence October 28, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0003747-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 17, 2016

        Kenneth Gerald Luchsinger appeals from his judgment of sentence,

entered in the Court of Common Pleas of Bucks County, following his

convictions for simple assault,1 recklessly endangering another person

(“REAP”),2 false imprisonment,3 and stalking.4        After careful review, we

affirm on the thorough opinion of the Honorable Albert J. Cepparulo.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2701(a)(1).
2
    18 Pa.C.S. § 2705.
3
    18 Pa.C.S. § 2903(a).
4
    18 Pa.C.S. § 2709.1(a)(1).
J-S21021-16



     In 2014, Luchsinger, who was 56 years old, was living in the home of

his 78-year-old mother Geraldine Luchsinger (Mother).          They had a

contentious relationship, as evidenced by the fact that in 2007 and 2010,

Mother obtained protection from abuse (PFA) orders against Luchsinger, and

on March 31, 2011, Luchsinger was found guilty of simple assault and

harassment against Mother.

     In late 2013, following the expiration of the second PFA, Luchsinger

moved back into Mother’s home. As the trial court noted:

     In March of 2014, [Mother] fractured her hip after falling in the
     shower and [Luchsinger] helped her out of the bathtub. She had
     to undergo surgery and as a result she could not “get around too
     good.” It was painful for [Mother] to walk around and she had
     to use a walker. [Luchsinger] helped her maintain the property
     during this time and occasionally cooked meals for her while she
     was in rehabilitation.

     On May 17, 2014, [Luchsinger] was still residing in [Mother’s]
     residence. [Mother] was home sleeping in bed at approximately
     three (3) o’clock in the morning when she was awoken to her
     alarm system alerting her someone had opened her back door
     approximately six (6) times in a row. [Mother] made her way to
     the kitchen of her residence and saw [Luchsinger]. [Luchsinger]
     proceeded to lift her up by her back with both hands, which she
     testified caused pain in her neck. [Luchsinger] then pushed her
     over onto the hardwood kitchen floor. When [Mother] thereafter
     fell onto the kitchen floor, she also experienced pain in her hip.
     She was on the floor for approximately one (1) hour while
     Defendant continuously “yelled” at her and inquired as to why
     she “didn’t love him” and accus[ed] her of loving her other son
     (who has since died) more.          [Mother] testified that when
     [Luchsinger] accused her of this, she responded, “Yes. Billy
     always stuck up for me when your father was hitting me.” When
     [Mother] would attempt to provide him with a response, he
     would yell “wrong answer” and stated, “if you don’t give me the
     right answer, I’m going to put those dirty socks in your mouth.”



                                   -2-
J-S21021-16


      [Luchsinger] then left the room momentarily and came back with
      two (2) socks and stuffed them into [Mother’s] mouth by
      pushing her head back and twisting them around in an attempt
      to fit them. [Mother] testified she struggled and felt as though
      she was unable to breathe. [Mother] did not try to get up from
      the floor during this incident because she was “really afraid” of
      [Luchsinger] did not know what he would do next.

      The assault concluded when [Luchsinger], while [Mother] was
      still sitting on the floor of the kitchen, went into the TV room and
      shut the door. [Mother] pulled herself up onto a chair and sat in
      the living room, as she was too scared to move further. She
      testified that around 7:00 A.M. [Luchsinger] went outside and
      cut the front lawn. Before [Luchsinger] left the residence to cut
      the grass, he stated, “I’m going to set you on fire, and I’ll throw
      you back in the woods in this big hole back there.” [Mother]
      testified that she was “scared to death” and, as a result, did not
      call police.

      Prior to this assault, [Mother] did not have any injuries on her
      body aside from her hip. She sustained a scratch and bruising to
      her face, bruising on her rear, and bruising on her arm.
      [Mother] continues to suffer pain in her back as a result of this
      incident. She further testified that her hair was also forcefully
      pulled out by [Luchsinger].

Trial Court Opinion, 8/13/15, at 3-5 (citations omitted).

      At the conclusion of a non-jury trial on October 28, 2014, the court

convicted Luchsinger of the above referenced offenses, and imposed an

aggregate sentence of 3 to 9 years’ incarceration plus two years of

probation.

      Luchsinger filed timely post-sentence motions, which the court denied

on May 29, 2015.

      This timely appeal followed in which Luchsinger asserts that the

evidence was insufficient to sustain a guilty verdict for simple assault, REAP,

false imprisonment, and stalking.


                                     -3-
J-S21021-16



      Our standard of review in assessing a challenge of the sufficiency of

the evidence is well-settled.

      In reviewing the sufficiency of the evidence, we must determine
      whether the evidence admitted at trial, and all reasonable
      inferences drawn from that evidence, when viewed in the light
      most favorable to the Commonwealth as verdict winner, was
      sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt.

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation o

mitted).

      “Any doubts concerning an appellant’s guilt [are] to be resolved by the

trier to fact unless the evidence was so weak and inconclusive that no

probability of fact could be drawn therefrom.”     Commonwealth v. West,

937 A.2d 516, 523 (Pa. Super. 2007). “[T]he Commonwealth may sustain

its burden of proving every element of the crime beyond a reasonable doubt

by means of wholly circumstantial evidence.”      Commonwealth v. Perez,

931 A.2d 703, 707 (Pa. Super 2007).

      Our review of Judge Cepparulo’s Rule 1925(a) opinion leads us to

conclude that it thoroughly and comprehensively addresses the issues raised

by Luchsinger, including the claim that he should be permitted to raise

issues of ineffective assistance of counsel on direct appeal.

      We affirm the judgment of sentence based on Judge Cepparulo’s

decision. We direct the parties to attach that decision in the event of further

proceedings in the matter.



                                     -4-
J-S21021-16



     Judgment of sentenced affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2016




                                 -5-
                                                                                          Circulated 03/04/2016 09:25 AM




           IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
                                CRIMINAL DIVISION

    COMMONWEALTH            OF PENNSYLVANIA                         No. CP-09-CR-0003747-2014
                                                                    2093 EDA 2015
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    KENNETH GERALD LUCHSINGER
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     I.       INTRODUCTION

           Appellant/Defendant Kenneth Gerald Luchsinger appeals to the Superior Court of

Pennsylvania from this Court's conviction and judgment of sentence. We file this Opinion

pursuant to Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(a).

     II.      FACTUAL AND PROCEDURAL BACKGROUND

           On May 18, 2014, Defendant was charged with Simple Assault, 1 Recklessly Endangering

Another Person ("REAP"), 2 False Imprisonment, 3 Disorderly Conduct,4 and two (2) counts of

Stalking.5 All charges were held for Common Pleas court following a preliminary hearing which

took place on June 24, 2014.6 The Criminal Information reflected only one (1) count of Stalking.

           A Motion in Limine was filed by the Commonwealth on September 8, 2014 regarding

admissibility of Defendant's prior bad acts and convictions pursuant to Pennsylvania Rule of

Evidence ("Pa.RE.") 404(b)(2).




1 18 Pa.C.S. § 270l(a)(l).
2
  18 Pa.C.S. § 2705.
3
  18 Pa.C.S. § 2903(a).
4 18 Pa.C.S. § 5503(a)(4).
5 18 Pa.C.S. § 2709.l(a)(l).
6
  An Aggravated Assault count (18 Pa.C.S. § 2702(a)(l)) was added to the Criminal Complaint at the Preliminary
Hearing but was dismissed thereafter by the Magisterial District Justice.

                                                 Page 1 of20
           On October 1, 2014, Defendant filed a Petition for Writ of Habeas Corpus, arguing that

    the charges were improperly held for court as the Commonwealth's          evidence was insufficient as

    a matter of law to establish a prima facie case. The Notes of Testimony from the preliminary

hearing were attached to the motion.

           On October 27, 2014, this Court heard pre-trial motions. Defendant's prior contacts

and/or offenses regarding the victim in this case were recited on the record by the District

Attorney. In 2007, Ms. Luchsinger (the complaining witness in this case) received a Protection

from Abuse ("PF A") Order against Defendant which did not expire until September 4, 2010.

N. T. 10/27 /14, 40-41; Exhibit ("Exh.") CS-6- 7. Both parties stipulated to the fact that Defendant

was convicted of Simple Assault and Harassment on March 31, 2011 for crimes committed

against Ms. Luchsinger.7 N.T. 10/27/14, 38; Exh. CS-1. In 2010, the victim received a second

PFA Order against Defendant which did not expire until 2013. N.T. 10/27/14, 27-28; Exh. CS-4-

5. Defendant complied with the condition of both PFA Orders that he was not to have contact

with Ms. Luchsinger during this time. N.T. 10/27/14, 40-41. Following review of the evidence

presented to the Magisterial District Judge (including a Written Statement given by Ms.

Luchsinger8 and photographs depicting her injuries"), the Notes of Testimony from the

preliminary hearing, as well as documentation of Defendant's prior conviction PFA petitions

against him, relevant case law and argument from both counsel, we granted Defendant's Habeas

Motion as to the Disorderly Conduct charged and dismissed the Motion as to the remaining

charges. Furthermore, in terms of the prior conviction and PF A Orders, we granted that the




7
  The incident underlying the charges occurred on November 10, 2010. N.T. 10/27/14, 26.
8
  See Exh. CS-2.
9
  See Exh. CS-3.

                                                Page 2 of20
Commonwealth could admit that evidence as substantive proof of the "course of conduct"

element of the Stalking charge. N.T. 10/27/14, 69.

        For purposes of trial, we ruled that the 2007 PFA application and Order were

inadmissible on the basis of being unduly prejudicial pursuant to Pennsylvania Rule of Evidence

("Pa.RE.") 403.

        We proceeded with a waiver trial on Simple Assault, REAP, False Imprisonment and

Stalking.

        At trial, Ms. Luchsinger testified that beginning in November or December 2014, her son,

Defendant Kenneth Luchsinger, was residing with her at her residence located at 4615 Gary

Drive in Bristol Township, Bucks County. N.T. 10/27/14, 79, 81. For the first couple of weeks

of Defendant's residence, Ms. Luchsinger described that it was "okay." Id. at 82. Ms.

Luchsinger testified that Defendant fixed the chimney and did chores around the house. Id. at

124. However, thereafter Defendant was "mean" to Ms. Luchsinger and would constantly yell at

her, slam things around the house often causing damage and not permitting her to enter the TV

room which he began to inhabit as his personal "apartment."   Id. at 82-83, See Exh. C-8. The

TV room was equipped with a back door leading to the exterior of the residence.   Id. at 84.

       In March of2014 Ms. Luchsinger fractured her hip after falling in the shower and

Defendant helped her out of the bathtub. Id. at 87. She had to undergo surgery and as a result

she could not "get around too good." Id. at 85-86, 155. It was painful for Ms. Luchsinger to

walk around and she had to use a walker. Id. at 86, 15 5. Defendant helped her maintain the

property during this time and occasionally cooked meals for her while she was in rehabilitation.

Id. at 126-27.




                                          Page 3 of20
         On May 17, 2014, Defendant was still residing in Ms. Luchsinger's residence. Id. at 79.

Ms. Luchsinger was home sleeping in bed at approximately three (3) o'clock in the morning

when she was awoken to her alarm system alerting her someone had opened her back door

approximately six (6) times in a row. Id. at 87~88.10 Ms. Luchsinger made her way to the

kitchen of her residence and saw Defendant. Id. at 88. Defendant proceeded to lift her up by her

neck with both hands, which she testified caused pain in her neck. Id. at 88, 91-92. Defendant

then pushed her over onto the hardwood kitchen floor. Id. at 88, 91-92, 95, 137. When Ms.

Luchsinger thereafter fell onto the kitchen floor, she also experienced pain in her hip. Id. at 95.

She was on the floor for approximately one (1) hour while Defendant continuously "yelled" at

her and inquired as to why she "didn't love him" and accusing her of loving her other son (who

has since died) more.     Id:. at 95,   112. Ms. Luchsinger testified that when Defendant accused her

of this, she responded "Yes. Billy11 always stuck up for me when your father was hitting me."

Id. at 112. When Ms. Luchsinger would attempt to provide him with a response, he would yell

"wrong answer" and stated "If you don't give me the right answer, I'm going to put those dirty

socks in your mouth." Id. at 95.

        Defendant then left the room momentarily12 and came back with two (2) socks and

stuffed them into Ms. Luchsinger's mouth by pushing her head back and twisting them around in

an attempt to fit them in. Id. at 96-97, See Exh. C-10. Ms. Luchsinger testified she struggled

and felt as though she was unable to breathe. Id. at 97. Ms. Luchsinger did not try to get up

from the floor during this incident because she was "really afraid" of Defendant and did not

know what he would do next. Id. at 98-99.



10
   The alarm system does not automatically signal the security company or police when someone enters the back
door, as the resident has to push a button in order to dial police. N.T. 10/27/14, 128-29.
II
   Ms. Luchsinger's other son.
12
   Ms. Luchsinger testified at this time she was afraid to move and "scared to death." N.T. 10/27/14, 137.

                                                 Page 4 of20
            The assault concluded when Defendant, while Ms. Luchsinger was still sitting on the

 floor of the kitchen, went into the TV room and shut the door. Id. at 98. Ms. Luchsinger pulled

 herself up onto a chair and sat in the living room, as she was too scared to move further. Id. at

 98, 107. She testified that around 7:00 a.m. Defendant went outside and cut the front lawn. Id.

Before Defendant left the residence to cut the grass, he stated "I'm going to set you on fire, and

I'll throw you back in the woods in this big hole back there." Id. at 99, 115. Ms. Luchsinger

testified that she was "scared to death" and, as a result, did not call police. Id. at 99, 108.

           Prior to this assault, Ms. Luchsinger did not have any injuries on her body aside from her

hip. Id. at 99. She sustained a scratch and bruising to her face, bruising on her rear and bruising

on her arm. Id. at 100-06, Exh. C-3. Ms. Luchsinger continues to suffer pain in her neck as a

result of this incident. Id. at 106. She further testified that her hair was also forcefully pulled out

by Defendant. Id. at 107.

           Between 5:00 and 6:00 p.m. the victim's niece, Colleen Stasinchak, called the residence

to ask if she needed any groceries. Id. at 108-09, 156. Ms. Stasinchak was also Ms.

Luchsinger's power of attorney and checked in on her well-being on a weekly basis. Id. at 108,

154-55. She had witnessed Defendant yelling at her quite often since he moved back in. Id. at

167. After talking to Ms. Luchsinger, Ms. Stasinchak came to the residence, as she sensed

something was wrong. Id. at 109, 156. She described Ms. Luchsinger as being "scared to

death," repeatedly asking if Ms. Stasinchak had seen Defendant. Id. at 157. Ms. Luchsinger

began showing Ms. Stasinchak the bruises she sustained from Defendant's assault and relayed to

her specifically what happened.         Id. at 157-58. Ms. Stasinchak saw the socks hanging on a bar

stool in the TV room. Id. at 158.13



13
     These socks were photographed and admitted into evidence. See Exh. C-3, C-10.

                                                   Page 5 of20
        Ms. Stasinchak called the police and Officer Thomas Van Winkle of the Bristol

Township Police Department ("BTPD") responded. Id. at 161, 183-84. Ms. Luchsinger testified

that at this point she was too upset to speak with him. Id. at 109, 161. Officer Van Winkle

described Ms. Luchsinger's   demeanor as follows:

       Very erratic, shaking to the point where I thought her arms and legs were going to
       fall off. I thought she was at the point of hyper-ventilation. I actually had to sit her
       down, get her under controlled breathing that we do with erratic witnesses, victims,
       complainants. That was taking several minutes. I asked her to take a sip of water,
       and I was still having so much trouble trying to get her to calm down.

Id. at 184. Officer Van Winkle observed a small cut on Ms. Luchsinger's face, a bruise on her

lip, and two very large bruises on her bicep and tricep. Id. at 185. The officer did not take any

pictures at this time because he was having difficulty getting information from Ms. Luchsinger.

Id. at 186. He left his name and number for her if she wished to proceed with criminal charges.



        Ms. Luchsinger stayed at Ms. Stasinchak's residence the night of May 17, 2014. Id. at

110.

       The next day, May 18, 2014, Ms. Luchsinger decided that she wanted to report to Officer

Van Winkle Defendant's assaultive and abusive conduct. Id. at 110, 165. She asked Ms.

Stasinchak to call police. Id. at 165, 187. Ms. Luchsinger explained that she was so nervous that

she was unable to write and, accordingly, Officer Van Winkle took her account of what

happened down on paper using her words. Id. at 110, 165, 188, 201-02. She signed the

statement and adopted it as her own. Id. at 110-11. See Exh. C-2. Ms. Stasinchak also signed

the statement attesting that she read the statement in full and the contents of which were an

accurate account of what Ms. Luchsinger told Officer Van Winkle happened. Id. at 166.




                                            Page 6 of20
        Both Ms. Stasinchak and Officer Van Winkle took photographs of Ms. Luchsinger's

injuries, as some of the areas to which injuries were sustained were private and Ms. Luchsinger

felt more comfortable with Ms. Stasinchak taking some of the photographs.     Id. at 113-14, 160,

189. Ms. Stasinchak took some of these photographs (the first too pages ofExh. C-3) the night

of May 17th whereas Officer Van Winkle took the remaining photographs on May 18th. Id. at

161-63. The photographs display bruising that, in some small areas, had taken on a greenish-

yellow hue. Id. at 143-45, Exh. C-3.

       Later that night Officer Van Winkle received a phone call from Ms. Stasinchak informing

him that Defendant was in the area. Id. at 193. Officer Van Winkle responded and found

Defendant towards the end of Ms. Luchsinger's street coming out of a wooded area. Id. at 194.

Officer Van Winkle checked to see if the warrant he had just filed was active and, upon receiving

confirmation that it was, he took Defendant into custody. Id. He detected a strong odor of

alcohol on Defendant's breath. Id.

       On cross-examination, pursuant to her statement (Exh. C-3) Ms. Luchsinger did not

inform Officer Van Winkle that Defendant grabbed her by her throat when she entered into the

kitchen, as she was very confused and "the more time I had, I could think of everything he did."

Id. at 130, 201-02. Further, Ms. Luchsinger did not provide police with the socks until the day

before the trial, as they had remained in her residence until then. Id. at 132, 199-200. She

informed this Court that there were periods in early 2014 where she fell down a couple times

and, additionally, she had been having problems getting adjusted properly with her medication.

Id. However, she testified the medicine was not the cause of these falls and that it did not make

her dizzy. Id. at 132-33. Furthermore, she did not disclose Defendant's statement that he was

going to bum her body and place it in the woods to Officer Van Winkle or the Magisterial



                                           Page 7 of20
 District Justice at her preliminary hearing. Id. at 140, 202-03. She explained that "I ... couldn't

 remember everything. When you have time to sit and think of all that happened to you, that's

when I thought about it." Id. at 150.

         Ms. Luchsinger described the November 2010 incident with Defendant which

                                                                                                        15
precipitated a PF A Order14 and criminal conviction of Simple Assault and Harassment,                        in

which Defendant forced Ms. Luchsinger to get up out of bed at 5:00 a.m. following a knee

replacement surgery. Id. at 115-16, 120-21. She attempted to go into the bathroom but

Defendant pushed her to the ground, near the toilet, and started stepping on her face. Id. at 116.

She sustained bruising on her face, a swollen eye, bruising and scratches on her back and injury

to her leg. Id. at 117. The PFA Order following this incident was effective from February of

2011 until February 8, 2013. Id.. at 121, Exh. C-4, C-5. After the PFA Order expired she

permitted Defendant to move back in with her because she "felt bad for him." Id. at 121-22.

         Following a careful consideration of the evidence presented and a review of the

applicable caselaw and relevant jury instructions, we found Defendant guilty on all counts.

         On October 28, 2014, we proceeding with Sentencing. Upon consideration of the facts

underlying Defendant's conviction, the Sentencing Guidelines, a domestic violence investigation

report, Defendant's failure to take responsibility for his actions, as well as the evidence and

argument submitted by both the defense and District Attorney, we sentenced Defendant to not

less than two (2) nor more than seven (7) years' incarceration on Stalking16 and a consecutive

period of not less than one (1) nor more than two (2) years' incarceration on Simple Assault.17


14
    See Exh. CS-4, CS-5.
15
    See CS-1.
 16
    The Sentencing Guidelines called for a sentence of not less than fifteen (15) nor more than twenty-one (21)
months' incarceration in the standard range, nine (9) months' incarceration in the mitigated range, and twenty-seven
(27) months' incarceration in the aggravated range.
17
    On Simple Assault, the Sentencing Guidelines recommended a sentence of not less than three (3) nor more than
twelve (12) months' incarceration in the standard range and restorative sanctions ("RS") in the mitigated range.

                                                  Page 8 of20
 On False Imprisonment, Defendant was sentenced to a two (2) year period of probation, to be

 served consecutive to his parole.18 No further penalty was imposed on the remaining counts.

Defendant was given credit for time served from May 17, 2014 to the date of sentencing and was

ordered to complete a mental health and drug and alcohol evaluation and abide by any and all

treatment recommendations.

            On November 7, 2014, Defendant filed post-sentence motions in the form of a Motion for

Reconsideration of Sentence, a Motion for a New Trial and/or An Arrest of Judgment, and a

Motion Seeking Leave to File Additional Post-Sentence Motions. We held a hearing on the

Motion for Reconsideration of Sentence on December 15, 2014. Following our conclusion that

Defendant failed to present any additional mitigating evidence, we denied the motion.

            In terms of the remaining motions, we took them under consideration pending the filing

of the requisite Notes of Testimony from the waiver trial. After reviewing the Notes of

Testimony, we issued an Order on May 29, 2015 denying the remaining post-sentence motions.

            On June 25, 2015, Defendant filed his Notice of Appeal to the Superior Court.

     III.      MATTERS COMPLAINED OF ON APPEAL

            Pursuant to this Court's June 26, 2015 Order, in his Statement of Matters Complained of

on Appeal filed on July 1, 2015, Defendant raised the following issues, verbatim:

            1) Whether the trial court erred in convicting the Appellant of simple assault and
               recklessly endangering another person given that:

                   a. The incident between the Appellant and his mother, Geraldine
                      Luchsinger, was not reported to police for over sixteen (16) hours.

                   b. Geraldine Luchsinger changed her testimony on what happened during
                      the incident while testifying at trial. Specifically, she stated the


18
 On False Imprisonment, the Sentencing Guidelines called for a sentence ofrestorative sanctions ("RS") to six (6)
months' incarceration in the standard range and nine (9) months' incarceration in the aggravated range.

                                                 Page 9 of20
           Appellant had picked her up by the throat and threw her to the ground
           and she testified that he threatened to kill her and bury her body in the
           woods. Neither of these statements were made to police or testified to
           at the preliminary hearing.

       c. Photographs entered into evidence by the Commonwealth show a
          yellowing of the bruise which was inconsistent with the injuries
          occurring within one to two days.

       d. Geraldine Luchsinger and Colleen Stasinchak both acknowledged that
          Geraldine would get dizzy from medication and had fallen, possibly
          accounting for her injuries.

       e. Police failed to follow up with any investigation at the house to show
          that Geraldine Luchsinger's account of what happened was true.
          Specifically, they did not follow up to see if the house alarm had gone
          off at 3:00 a.m., check the floor for hair which Geraldine stated was
          pulled from her head, and they did not check to see if the sock placed in
          her mouth had her DNA on it.

2) Whether the trial court erred in finding there was sufficient evidence to convict
   the Appellant of false imprisonment in that: There was no evidence Geraldine
   Luchsinger was held to the ground; prevented from getting up or prevented
   from leaving the kitchen.

3) Whether the trial court erred in convicting the Appellant of stalking in that:

       a. The prior incident of assault allowed in at trial occurred in 2010. He
          was prohibited from contact with her for three (3) years and he has never
          violated that PFA.

       b. The Appellant was allowed to live in the house by his mother in October
          of 2013.

       c. The Appellant was never asked to leave.

       d. The Appellant would prepare meals, make doctor's appointments, and
          help his mother around the house.




                                   Page 10 of20
                   e. The Appellant rescued his mother when she fell in the shower in March
                      of 2014. He pulled her from the shower and summoned help.

                  f.   It was not until six ( 6) months after he was back in the house that this
                       incident occurred.

                  g. Convicting the Appellant of stalking for solely what occurred in the
                     kitchen would amount to every assault in which there is more than one
                     blow being a stalking.

     IV.       ANALYSIS

           All issues on appeal constitute a challenge to the sufficiency of the evidence to support a

conviction on all counts. As such, each claim will be addressed in tum.

           The standard for reviewing a challenge to the sufficiency of the evidence is well-settled:

           In reviewing sufficiency of evidence claims, we 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.
           Admittedly, guilt must be based on facts and conditions proved, and not on
           suspicion or surmise. Entirely circumstantial evidence is sufficient so long as the
           combination of the evidence links the accused to the crime beyond a reasonable
           doubt. 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 fact finder
           is free to believe all, part, or none of the evidence presented at trial.

Commonweallh v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011) (internal citations omitted).

           Because Defendant's claims detail two (2) specific seemingly inconsistent statements

made by Ms. Luchsinger, 19 we feel it pertinent to set forth the applicable caselaw regarding the

consideration and weighing of such statements as follows:

        Prior inconsistent statements, however, do not render a witness incompetent or
        require that [her] testimony be disbelieved. It is true, of course, that a conviction

19
  Although we feel these statements are more adequately characterized as undisclosed until the date of trial, we find
the reasoning and rationale of the following case law relevant nonetheless.

                                                  Page 11 of20
       cannot properly be sustained if it be based upon testimony of a witness which is so
       contradictory on the essential issues as to make the verdict obviously the result of
       conjecture or guess. However, the mere fact that there are some inconsistencies is
       not alone sufficient to destroy the Commonwealth's case. It is the function of the
       trier of the facts, in this case the trial judge, to reconcile conflicting testimony; the
       mere existence of conflicts in the testimony does not mean that he is required to
       resort to speculation.

Commonwealth v. Henry, 470 A.2d 581, 858 (Pa. Super. 1983) (internal citations omitted).

    a) Simple Assault

       Simple Assault is defined as follows:

       (a) Offense defined.-- Except as provided under Section 2702 (relating to
       aggravated assault), a person is guilty of assault if he:

               (1) attempts to cause or intentionally, knowingly or recklessly causes bodily
               injury to another


18 Pa.C.S. § 2701(a)(l). Bodily injury is defined as "Impairment of physical condition or

substantial pain." 18 Pa.C.S. § 2301. Caselaw dictates that "[i]n order to obtain a conviction for

simple assault, the Commonwealth was required to demonstrate beyond a reasonable doubt that

Appellant knowingly injured the victim." Commonwealth v. Torres, 766 A.2d 342, 344 (Pa.

2001). Moreover, where resulting bodily injury is not established by the Commonwealth, "it is

sufficient to support a conviction if the Commonwealth establishes an attempt to inflict bodily

injury" and "[t]his intent may be shown by circumstances, which reasonably suggest that a

defendant intended to cause injury." Commonwealth v. Martuscelli, 54 A.3d 940, 948-49 (Pa.

Super. 2012), citing Commonwealth v. Eckrote, 12 A.3d 383, 386 (Pa. Super. 2010).

       At the outset, we note that we found Ms. Luchsinger' s testimony wholly credible.

Furthermore, her testimony is corroborated by her disclosure of the incident to Ms. Stasinchak

later that same day. The fear Ms. Luchsinger experienced following the incident was evidenced

                                           Page 12 of20
by her demeanor on the date of the incident as witnessed and later described by Officer Van

Winkle, an experienced law enforcement officer, as uncontrollably shaking, erratic and she was

close to the point of hyper-ventilation.

         The evidence submitted by the Commonwealth was sufficient to establish that Ms.

Luchsinger experienced bodily injury in the form of a scratch and bruising on her face, bruising

on her rear, bruising on her arm, and pain in her neck caused directly by Defendant's assaultive

campaign against her commencing on May 17, 2014 at approximately 3 :00 a.m. Therefore,

Defendant actually caused physical bodily injury to the victim. The fact that he continued his

assaultive behavior for approximately one (1) hour and that he had knowledge that his mother

had recently undergone major surgery indicates he was fully aware and intended to cause her

bodily injury. Further, Defendant's actions in stuffing a sock down her throat also constitute an

independent commission of simple assault, as Defendant forcefully cut off Ms. Luchsinger's

airways, which could have resulted in unconsciousness or even death.

         Addressing her inconsistent statements in the form of her failure to inform Officer Van

Winkle or testify at the preliminary hearing to her trial testimony that Defendant threatened to

burn her body and place it in the woods and picked her up by the neck following her entrance to

the kitchen as a precursor to the remaining concentrated campaign to assault and terrify his own

mother, we accept her explanation that at the time of the preliminary hearing she did not

specifically remember these occurrences until her own subsequent independent reflection of the

incident. Accordingly, her testimony was not internally so inconsistent as to render a verdict

based thereon, in addition to corroborating testimony and evidence, a matter of conjecture or

guess.




                                           Page 13 of20
        Additionally, in terms of the defense's argument to the yellowing in some of the bruises

as being inconsistent with the injuries, we note following our review of the photographs admitted

into evidence of Ms. Luchsinger's injuries (Exh. C-3), that only the very outer circumference of

a few of the bruises show yellowing. Utilizing our own common knowledge and experience

acting as the fact-finder in the instant case, and without the aid of expert testimony to the

contrary, we recognized that these photographs were taken at least fifteen (15) hours after the

incident and that every individual, oftentimes based on characteristics such as age and the

distinct pressure/trauma which caused the bruise(s), heals from bruising in a distinct and

individual manner. Moreover, the inner portion of these bruises were very dark. Furthermore,

the bruises specifically were consistent with the victim's version of events, i.e., the bruises on

her bottom were the result of her fall onto the kitchen floor following Defendant's shove and the

bruises to her arm and face and small cut on her face were the result of Defendant holding her

down and forcing the socks into her mouth. We found and do find here that Ms. Luchsinger' s

explanation of the cause of the bruises at the hands of Defendant was both credible and

believable. Further, there was a marked absence of any defense evidence to the contrary.

        Further, we note in passing that the lack of evidence pertaining to the house alarm, Ms.

Luchsinger's hair or DNA evidence, although this evidence would have provided further

corroboration, is simply not dispositive of the Simple Assault conviction. Additionally, although

the socks were not initially collected and preserved as evidence, upon Ms. Stasinchak's arrival at

the residence the night of the incident she noticed the socks hanging on a barstool in the living

room area and took a photograph of them, both the socks themselves and the photograph were

admitted without objection into evidence. See Exh. C-3, C-10.




                                           Page 14 of20
        Finally, although Ms. Luchsinger did admit and Ms. Stasinchak confirmed she had some

initial difficulty with her medication, we find Ms. Luchsinger' s testimony credible that dizziness

from the medication did not cause any recent falls that would attribute any significant bruising

and that the bruising was wholly caused by Defendant's assaultive behavior towards her.

        Accordingly, we found that there existed sufficient evidence to find Defendant guilty of

Simple Assault.

    b) REAP

        18 Pa.C.S. § 2705 provides an individual commits REAP where he/she " ... recklessly

engages in conduct which places or may place another person in danger of death or serious

bodily injury." Serious bodily injury is defined as "[b]odily injury which creates a substantial

risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment

of the function of any bodily member or organ." 18 Pa.C.S. § 2301. In examining a sufficiency

of the evidence challenge pursuant to a REAP conviction, the Pennsylvania Superior Court in

Martuscelli set forth the following:

       To sustain a conviction for recklessly endangering another person, 'the
       Commonwealth must prove that the defendant had an actual present ability to inflict
       harm and not merely the apparent ability to do so.' 'Danger, not merely the
       apprehension of danger, must be created.' 'The mens rea for recklessly endangering
       another person is 'a conscious disregard of a known risk of death or great bodily
       harm to another person.' '

54 A.3d at 949 (internal citations omitted).

       At least three (3) of Defendant's separate actions independently constitutes the offense of

REAP, including one (1) Defendant picking Ms. Luchsinger up by her neck upon her entrance

into the kitchen, two (2) Defendant shoving Ms. Luchsinger onto the floor following hip

replacement surgery and three (3) stuffing socks into Ms. Luchsinger's mouth to the point of



                                          Page 15 of20
which she felt she was unable to breathe. Each of these incidents, based in part on her recent hip

surgery, had the potential to cause serious bodily injury in the form of a protracted loss or

impairment of Ms. Luchsinger's hip or her ability to property breathe, which could have

foreseeably resulted in a loss of consciousness or death.

        In response to the defense's more specific arguments made in terms of the sufficiency of

the evidence claims for both Simple Assault and REAP pertaining to Ms. Luchsinger's

inconsistent statements, yellowing of some of her bruises, dizziness sometimes caused by

medication, and the police officer's failure to collect certain evidence, for the sake of brevity we

rely on our statements set forth above as they relate to the Simple Assault conviction by

extension.

    c) False Imprisonment

       Pursuant to 18 Pa.C.S. § 2903(a), an individual commits False Imprisonment if: "he

knowingly restrains another unlawfully so as to interfere substantially with his liberty." In

examining a sufficiency of the evidence claim in relation to a False Imprisonment conviction, the

Pennsylvania Superior Court has set forth as follows:

       In determining the magnitude of restraint necessary for false imprisonment, this
       Court has recognized that false imprisonment covers restraints which are less
       serious than those necessary for the offenses of kidnapping and unlawful restraint.
       In determining whether the restraint at issue interfered with D.M.'s liberty
       "substantially," we give the word "substantially" its plain meaning. 1 Pa.C.S.A. §
       1903 (words in a statute are to be construed according to rules of grammar and
       according to their common and approved usage). Thus, we determine the
       Legislature intended false imprisonment to cover restraints where an individual's
       liberty is interfered with in an ample or considerable manner. See Merriam
       Webster's Collegiate Dictionary 1174 (10th ed.1997).

In re M.G., 916 A.2d 1179, 1181-82 (Pa. Super. 2007) (internal citations and footnotes omitted).




                                           Page 16 of20
        The Superior Court found sufficient evidence existed to support a conviction of False

Imprisonment in In re M.G., wherein Defendant snuck into the victim's bedroom, concealed

himself behind the door while the victim was in the shower, and, once the victim reentered her

room in a towel, Defendant shut and locked the door. 916 A.2d at 1182. Defendant then moved

towards the victim, she attempted to resist by pushing him and Defendant began to assault her.

Id. The Court reasoned that Defendant's actions were "ample enough to qualify as being a

'substantial interference'" with the victim's liberty because he stood between her and the door.

Id. In making this determination, the Superior Court relied on its holding in Commonwealth v.

Prince, 719 A.2d 1086 (Pa. Super. 1998), wherein the Court found that the Commonwealth

presented sufficient evidence to support a conviction of Unlawful Restraint (in which the

restriction of liberty must be more substantial than that of False Imprisonment). Id. In Prince,

the Superior Court accurately summarized that the evidence was sufficient "where the victim lay

near the appellant all night out of fear for her safety." Id. See Prince, 719 A.2d at 1087-89.

       In the case sub judice, the factual circumstances are similar to that in Jn re M.G., in that

Defendant forcefully shoved Ms. Luchsinger to the ground and continually verbally shouted at

her as well as physically assaulted her while she was lying on the floor. The caselaw dictates

that although Defendant was not physically holding her down the entire exchange preventing her

escape, the crime of False Imprisonment encompasses such a psychological feeling or

disposition of having one's freedom of movement restricted that, in this case, was triggered by

present physical violence, a history of physical violence and otherwise threatening behavior, as

well as Ms. Luchsinger's inability to adequately get away quick enough based on her recent

surgery and resulting pain from her fall to the kitchen floor at Defendant's hands.




                                           Page 17 of20
        Accordingly, the Commonwealth presented sufficient evidence to support Defendant's

False Imprisonment conviction.

    d) Stalking

        18 Pa.C.S. § 2709.1 defines the offense of Stalking as follows:

       (a) Offense defined.--A person commits the crime of stalking when the person
       either:

              (1) engages in a course of conduct or repeatedly commits acts toward
              another person, including following the person without proper authority,
              under circumstances which demonstrate either an intent to place such other
              person in reasonable fear of bodily injury or to cause substantial emotional
              distress to such other person


18 Pa.C.S. § 2709.l(a)(l) (emphasis added). "Course of conduct" is defined by statute as

       A pattern of actions composed of more than one act over a period of time, however
       short, evidencing a continuity of conduct. The term includes lewd, lascivious,
       threatening or obscene words, language, drawings, caricatures or actions, either in
       person or anonymously. Acts indicating a course of conduct which occur in more
       than one jurisdiction may be used by any other jurisdiction inwhich an act occurred
       as evidence of a continuing pattern of conduct or a course of conduct.

18 Pa.C.S. § 2709.l(f). Furthermore, "[c]ourse of conduct by its very nature requires a showing

of a repetitive pattern of behavior." Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super.

1995). In Commonwealth v. Leach it was established that"[ c]ourse of conduct is established by

proof of two related but separate events." 729 A.2d 608, 611 (Pa. Super. 1999).

       In Urrutia, the Superior Court found sufficient evidence was submitted by the

Commonwealth to prove Stalking beyond a reasonable doubt where the victim, following the end

of a consensual romantic relationship, was forced to seek a PFA Order following Defendant's

continued harassment and his later conduct in coming to the victim's residence and exhibiting

violent behavior on two (2) separate occasions. 653 A.2d at 707-10.

                                         Page 18 of20
         In finding Defendant guilty of Stalking, we considered Defendant's conduct underlying

 the instant Simple Assault, REAP and False Imprisonment convictions coupled with his prior

 acts20 precipitating the 2010 PFA Order and 2010 conviction of Simple Assault relating to

 abusive conduct against Ms. Luchsinger to constitute a course of conduct supportive of a

 Stalking conviction. Furthermore, such conduct has undoubtedly resulted in both bodily injury

and severe emotional distress to Ms. Luchsinger, which was evident to this Court during her time

testifying.

         Although Defendant did abide by the no contact provisions relating to his 2010

conviction and 2010 PFA Order, we find that his behavior demonstrates that, despite Ms.

Luchsinger' s resort to the civil and criminal justice system in response to his abusive behavior,

Defendant continually makes attempts to enter back into her life and, in doing so, he relentlessly

exhibited predatory behavior which the Stalking statute was enacted to eviscerate.

         Pursuant to established legal standards and, particularly, the General Assembly's clear

definition of course of conduct, the fact that the victim let Defendant back into her life following

his continuous abuse and prior PFA Order, criminal conviction, and no contact orders resulting

therefrom, does not change the fact that Defendant's abusive acts against his mother were

committed over an indeterminable period of time and this does not in and of itself prevent a

conviction of Stalking. 21

         We also disagree with the defense's seemingly "slippery slope" contention, i.e. that a

stalking conviction in this case indicates that "every assault in which there is more than one blow

[would constitute] a stalking." See "Statement of Matters Complained Of On Appeal," 7/15/15,


20
   These prior acts were admissible to show a "course of conduct," an essential element of Stalking. See
Commonwealth v. UnuLia, 653 A.2d 706, 709 (Pa. Super. 1995).
21
   We were unable to find caselaw relating to similar factual circumstances in which an abuser, following expiration
of a no contact order, is voluntarily let back in by his/her abused and, thereafter, continues a campaign of abuse.

                                                  Page 19 of20
,r 3(g).   To the contrary, the instant case involves a continued campaign to abuse Ms. Luchsinger

over a period of time and is not limited to a sole incident.

           Finally, while we agree with the defense that Defendant did provide a certain amount of

aid while living in Ms. Luchsinger's residence, this does not negate nor change the fact that he

committed an assault on her during the early morning hours of May 17, 2014 and this assault was

just one incident in a lengthy period of Ms. Luchsinger's abuse at the hands of Defendant.

           Accordingly, Defendant's claims are without merit and the Commonwealth presented

sufficient evidence to satisfy each and every element of Stalking beyond a reasonable doubt.

    I.        CONCLUSION

           The foregoing represents this Court's opinion regarding Defendant's appeal from his

conviction and judgment of sentence.




                                                       BY THE COURT:




                                            Page 20 of20
       COMMONWEAL TH OF PENNSYLVANIA VS. KENNETH LUCHSINGER
                      NO. CP-09-CR-0003747-2014


Copies sent to:


Joseph S. Haag, Chief Deputy Public Defender
Office of the Public Defender
BUCKS COUNTY JUSTICE CENTER
100 North Main Street, 1st Floor
Doylestown, PA 18901
Attorney for Appellant

Kate Kohler, ADA
Office of the District Attorney
BUCKS COUNTY JUSTICE CENTER
100 North Main Street, 2nd Floor
Doylestown, PA 18901
Attorney for Appellee/Commonwealtb

Kelly Neff, (via email only)
LAW REPORTER

Barbara A. Morris,
Law Library
                           PROOF OF SERVICE


             I hereby certify that I served this day the foregoing

documents upon the persons and in the manner indicated below, which

service satisfies the requirements   of Pa. R.A.P. 121:


 Service in person
   as follows:

Hon. Albert J. Cepparulo
(215) 340-8875
Judge's Chambers
Bucks County Justice Center
Doylestown, PA 18901

Kate Kohler
Assistant District Attorney
(215) 348-6344
District Attorney's Office
Bucks County Justice Center
Doylestown, PA 18901
Attorney for Appellee



DATED:     /,µ~              BY:        ~d~
                                 Josiji/H.HAAG.
                                 CHIEF DEPUTY PUBLIC DEFENDER
                                 ATTORNEY ID #59517
                                 PUBLIC DEFENDER'S OFFICE
                                 BUCKS COUNTY JUSTICE CENTER
                                 DOYLESTOWN, PA 18901
                                 (215) 348-6473
                                 EMAIL: slspickler@buckscoun ty. org
                                 ATTORNEY FOR APPELLANT
