J-S17021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JESSE D. TAYLOR                            :
                                               :
                       Appellant               :   No. 579 EDA 2018

            Appeal from the Judgment of Sentence January 11, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0002699-2017


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                    FILED MAY 10, 2019

       Appellant, Jesse D. Taylor, appeals from the judgment of sentence

entered on January 11, 2018, following his bench trial conviction for

harassment, 18 Pa.C.S.A. § 2709(a)(1). Upon review, we affirm.

       The trial court summarized the facts and procedural history of this case

as follows:

       [Appellant] was arrested and charged with simple assault and
       harassment. At trial, the Commonwealth presented two police
       witnesses. Sergeant [Timothy] Walters responded to [a home on]
       Walnut Ridge Estates in Lower Pottsgrove, Montgomery County
       with two other officers to locate a subject who had just left the
       area. Sergeant Walters was met at the door of the residence by
       [E.T.]1 who was approximately 5’11[’’] and 135 pounds. [E.T.]
       was described by Sergeant Walters as upset, distraught, and
       scared. [E.T.] was disheveled, with ruffled clothing, and had
       redness on her neck and shoulder area. Sergeant Walters further
       observed a bump on the back of [E.T.’s] head when [E.T.] moved
____________________________________________


1   We use the victim’s initials to protect her identity.
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       her head to show the Sergeant the area she was complaining
       about. Inside the residence, a large screen [television] was
       flipped over, there were splintered wood items in the dining room,
       and there were broken pottery pieces in the kitchen. Sergeant
       Walters also noted that the home was unusually dark which
       Sergeant Walters later discovered was due to the [circuit]
       breakers in the basement being turned out, not tripped.
       Eventually, Sergeant Walters came into contact with [Appellant].
       [Appellant] admitted that he lived [at the residence in question]
       and was married to [E.T.]. [Appellant] was several yards from
       the home when police encountered him. Sergeant Walters was
       familiar with [Appellant] from prior domestic disturbance calls.

       Officer [Matthew] Kemp testified that he responded to the same
       location as Sergeant Walters and was looking for the male that
       left the location. [Appellant] was located and told police that his
       wife “had gotten up in his face and he pushed her away on two
       separate occasions.” [Appellant] had no injuries.

       [After the presentation of the Commonwealth’s evidence,
       Appellant moved] for judgment of acquittal on all charges, and
       [the trial] court granted the judgment of acquittal on simple
       assault. The motion for judgment of acquittal was denied on
       harassment. [The trial] court found [Appellant] guilty of summary
       harassment and sentenced [him] to 60 days of probation plus
       domestic violence counseling. Post-sentence motions were timely
       filed and ultimately denied by [the trial] court on January 25,
       2018. On February 20, 2018, [Appellant] filed a timely notice of
       appeal. [Appellant filed a timely court-ordered concise statement
       of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
       The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
       March 26, 2018.]

Trial Court Opinion, 3/26/2018, at 1-2 (superfluous capitalization and record

citations omitted).

       On appeal, Appellant presents the following issues2 for our review:
____________________________________________


2   We have reordered the issues for ease of discussion and disposition.
Additionally, we note that Appellant presented other issues in his Rule 1925(b)
statement, but he does not challenge those issues on appeal. As such, we



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       I.     Was Appellant’s [c]onstitutional [r]ight to [c]onfrontation
              denied where the police, the Commonwealth, and [trial
              c]ourt relied on heard or inferred statements of a
              complainant who was not present in court and thus could
              not be cross-examined?

       II.    Was evidence of the crime of [h]arassment insufficient
              where the only testimony introduced was that of arresting
              officers who appeared on the scene after-the-fact and have
              no direct knowledge of the incident in question, and where
              Appellant’s admission as to physical contact does not
              support a finding of the requisite intent?

Appellant’s Brief at *1 (missing page number).

       On the first issue we examine, Appellant argues that the trial court erred

by denying his right to confront the victim at trial and allowing the

investigating police officer to testify about statements she made to him when

he responded to an anonymous 911 telephone call about a possible domestic

dispute.     Id. at 11-14.      Solely citing the United States Supreme Court’s

decision in Crawford v. Washington, 541 U.S. 36 (2004), Appellant claims:

       Testimonial statements of witnesses absent from trial can be
       admitted only where the declarant is unavailable, and only where
       the defendant has had a prior opportunity to cross-examine.
       [The] collective testimony presented [at trial] implie[d] that a
       female complainant made various statements to police, accus[ed]
       the defendant of causing an injury to her head and of fleeing the
       home. Those implied statements resulted in the investigation,
       arrest, and the charges that led to [] Appellant’s conviction. The
       prosecution relied on the implied testimony to make the
       Commonwealth’s argument that that [there was a] domestic
       assault[].    Statements from the complainant were, thus,
____________________________________________


find them waived. See Commonwealth v. Hernandez, 39 A.3d 406, 412
(Pa. Super. 2012) (failure to develop argument with citation to and analysis
of relevant authority waives issue on appeal); Pa.R.A.P. 2119(b); Pa.R.A.P.
2101.

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      incorporated into the trial and the accused should have had the
      opportunity to cross-examine his accuser.

Id. at 13-14 (original brackets, quotations, footnote, and citations omitted).

      “Whether a defendant was denied his right to confront a witness under

the confrontation clause of the Sixth Amendment is a question of law for which

our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa. Super. 2017) (citation

and brackets omitted).

      Applicable herein, this Court has summarized the law pertaining to

confrontation as such:

      In Crawford, the trial court admitted the tape-recorded
      statement of a wife implicating her husband as the perpetrator in
      a stabbing. The wife was unavailable at trial because the husband
      objected to her testimony on marital privilege grounds.
      Washington state law did not prohibit introduction of the wife's
      tape-recorded statement so long as it bore adequate indicia of
      reliability. The Washington Supreme Court ultimately concluded
      the wife's statement bore sufficient indicia of reliability to warrant
      its admission at trial. The husband argued the wife's statement
      violated his rights under the Confrontation Clause, regardless of
      its admissibility under state law.

      The United States Supreme Court held the wife's statement
      inadmissible under the Confrontation clause. The principle evil at
      which the Confrontation Clause was directed was the civil-law
      mode of procedure, and particularly its use of ex parte
      communications as evidence against the accused. Likewise, the
      Framers would not have allowed admission of testimonial
      statements of a witness who did not appear at trial unless he was
      unavailable to testify, and the defendant had a prior opportunity
      for cross-examination. The Crawford Court found no occasion to
      offer a comprehensive definition of [“]testimonial.[”] Whatever
      else the term covers, it applies at a minimum to prior testimony
      at a preliminary hearing, before a grand jury, or at a former trial;
      and to police interrogations.


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Commonwealth v. Williams, 103 A.3d 354, 358–359 (Pa. Super. 2014)

(internal citations and quotations omitted).

      The United States Supreme Court, in subsequent decisions, clarified the

scope of “testimonial evidence” as examined in Crawford as such:

      Statements are nontestimonial when made in the course of police
      interrogation under circumstances objectively indicating that the
      primary purpose of the interrogation is to enable police assistance
      to meet an ongoing emergency. They are testimonial when the
      circumstances objectively indicate that there is no such ongoing
      emergency, and that the primary purpose of the interrogation is
      to establish or prove past events potentially relevant to later
      criminal prosecution.

      The Supreme Court confirmed that the protection of the
      Confrontation Clause attaches only to testimonial hearsay.

Id. at 359 (citation omitted).

      Moreover,

      [t]he existence of an ongoing emergency is important because it
      indicates that the declarant's purpose in speaking was to help
      resolve a dangerous situation rather than prove past events. The
      zone of potential victims and the type of weapon involved inform
      the inquiry. […D]omestic violence cases[] often have a narrower
      zone of potential victims.

                          *           *            *

      The medical condition of the victim is important to the primary
      purpose inquiry to the extent that it sheds light on the ability of
      the victim to have any purpose at all in responding to police
      questions and on the likelihood that any purpose formed would
      necessarily be a testimonial one. The victim's medical state also
      provides important context for first responders to judge the
      existence and magnitude of a continuing threat to the victim,
      themselves, and the public.

Id. at 360–361.


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      Here, police responded quickly to an emergency telephone call “for a

domestic dispute that was occurring” at the subject residence.              N.T.,

12/26/2017, at 8 and 18. Upon initial contact, the victim appeared “very

upset[,] distraught, [and] scared” and was “[s]lightly disheveled.” Id. at 10.

Her clothes were ruffled, she had redness around her neck and shoulder area,

and she had a lump on the back of her head. Id. at 10-11. Inside the house,

a window was broken and covered with cardboard and duct tape. Id. at 13.

There were fractured pieces of furniture, splintered wood, and broken pottery

or dishware covering the floor of the kitchen and a large, flat-screened

television was overturned.    Id.   The house was dark, even though it was

daytime, and police checked the circuit breaker to find that the electricity had

been physically turned off. Id. at 14-15. Appellant was not present. Id. at

15-16.

      Based upon all of the foregoing, we conclude that the victim’s

statements to police were nontestimonial and made under circumstances

objectively indicating that the primary purpose of her exchange with the

responding officers was to enable police to meet an ongoing emergency.

Police responded close in time to the emergency telephone call. Upon arrival,

police witnessed that the victim suffered injuries and was visibly upset, the

house where the alleged altercation occurred was dark and disheveled, and

Appellant was still at large. As first responders, the officers elicited responses

from the victim to judge the existence and magnitude of a continuing threat

to her, themselves, and the public. The primary purpose of the questioning

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was not to establish or prove past events potentially relevant to later criminal

prosecution. Instead, the primary purpose of the challenged exchange was to

enable an assessment of the situation and the formulation of a responsive

plan. As such, we discern no error in admitting the victim’s nontestimonial

statements at trial through the testimony of the investigating police officers.

Accordingly, Appellant’s first issue lacks merit.

      Next, Appellant asserts that the evidence at trial was insufficient to

sustain his conviction for harassment.       Appellant’s Brief at 6-11.    More

specifically, Appellant argues that

      there was no showing of intent. The record shows merely that
      police responded to a call to find a woman who was distraught and
      that they witnessed some signs of a home out of order. The
      evidence does not provide any insight into the exact nature,
      timing, or cause of the alleged disturbance, nor do the
      circumstances observed by officers arriving at the scene provide
      any link to Appellant absent conjecture regarding what the content
      of the complainant’s inadmissible hearsay would be.

Id. at 7. Appellant also argues that because the trial court determined that

there was insufficient evidence of bodily injury to sustain a conviction for

simple assault, the evidence was also insufficient to support his harassment

conviction. Id. at 7-8. He contends that the only evidence of record regarding

any contact between Appellant and the complainant was Appellant’s own

statement to police that the complainant had “gotten up in his face” and that

he “pushed her away twice.” Id. at 8. Appellant suggests that such evidence

“indicates that the intention behind the push[ing] was aimed to create and




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preserve personal body space [and] was responsive, as opposed to

provocative.” Id. at 9.

      Our standard of review is as follows:

      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 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. Montanez-Castro, 198 A.3d 377, 380 (Pa. Super. 2018)

(internal citation and original brackets omitted).

      “A person commits the crime 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.A. § 2709(a)(1).

      Here, viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner as our standard requires, we conclude

that there was sufficient evidence to sustain Appellant’s conviction for



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harassment. Initially, we reject Appellant suggestion that because the trial

court determined that there was insufficient evidence of bodily injury to

sustain a conviction for simple assault, the evidence was also insufficient to

support his harassment conviction.      This Court has previously noted that

“physical affronts that do not result in ‘bodily injury,’ and therefore do not

constitute a simple assault, would likely be addressable under the summary

offense of harassment which specifically includes conduct where the actor

‘strikes, shoves, kicks or otherwise subjects him to physical contact.’”

Commonwealth v. Wertelet, 696 A.2d 206, 211 (Pa. Super. 1997) (citation

omitted). In this case, Appellant readily admitted to the police that he shoved

the victim twice. As such, there is no dispute that physical contact with the

victim occurred as required for harassment. Moreover, Appellant’s argument

that the evidence showed that he was instinctively reacting to the victim’s

affront of his personal space, views the evidence in the light most favorable

to himself in contravention of our standard of review. The trial court was free

to believe all, part, or some of the evidence presented. Aside from Appellant’s

self-serving statements to the responding officers that he pushed the victim

because she was physically menacing him, there was no other record evidence

in support of that assertion. Finally, the trial court determined that “[w]hen

viewing [Appellant’s] statement[s to police] in the context of the injuries on

the complainant, the short time period in which the events occurred, and the

state of the house when police arrive[d], it is clear that, at a minimum,

[Appellant] intended to harass, alarm, or annoy his wife[.]”       Trial Court

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Opinion, 3/26/2018, at 13. We discern no error or abuse of discretion, as the

trial court was permitted to infer Appellant’s intent from the circumstantial

evidence presented by the Commonwealth. For all of the foregoing reasons,

we conclude there was sufficient evidence to support Appellant’s conviction

for harassment and Appellant’s second claim fails.

     Judgment of sentence affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/19




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