J-A28038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARC E. ROTHSTEIN
Appellant No. 330 EDA 2014
Appeal from the Judgment of Sentence December 6, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008517-2012
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 25, 2014
Appellant Marc Rothstein (“Appellant”) appeals the judgment of
sentence entered on December 6, 2013, by the Montgomery County Court of
Common Pleas. After careful consideration, we affirm.
The trial court summarized the facts and procedural history of this
matter as follows:
On May 22, 2012, at approximately 6:30 p.m., Eileen Potts
arrived at her home located in a townhouse development at 103
Stratford Court, Lansdale, Montgomery County, PA, after having
had dinner with her sister, Sharon Glick. Appellant was and
remains a neighbor of both Ms. Potts and Ms. Glick, who live
together with Ms. Potts’ husband. Appellant lives two doors
down from the Potts-Glick home.
On that evening, Ms. Potts drove up to her home and she
saw Appellant talking with her sister in a neighbor’s yard. As
Ms. Potts pulled into her driveway she had an unobstructed view
of Appellant. Her vehicle was facing right towards him. She
observed Appellant had a very big hole in the front of his khaki
pants. A rip, a very clean cut that looked like it was done with
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scissors. Appellant had no underwear on. Ms. Potts was very
horrified, scared and really freaked out when she observed
Appellant’s erect penis and scrotum exposed by the gaping hole
in his khaki pants. At that point, Ms. Potts wanted to get her
sister out of the situation. She got out of her car, and as she
held up her cell phone, she told her sister that someone was on
the phone and wanted to talk to her. They went quickly into
their home.
At trial, Ms. Glick, who arrived home a few minutes before
her sister, testified that she parked her car in the same parking
spot as usual. As she got out of her car, Appellant was coming
out of his home and engaged her in small talk. At that point,
Appellant was approximately 12 feet away from Ms. Glick. Ms.
Glick noticed that Appellant was wearing khaki pants that had a
huge gaping cut in them. A cut from about the middle of the
crotch down to about the knee. She noticed the cut right away.
Ms. Glick thought she had better get into her home as fast as
she can. She moved quickly towards her house and tried to
position herself behind a neighbor’s for sale sign to act as a
barrier to her view of Appellant’s pants. At that point, Ms.
Glick’s sister arrived home and was able to extricate her from
the situation.
The sisters were very shocked, and they went immediately
to the police station to report the incident as it seemed like an
escalation from other previous and similar incidents that
occurred throughout the previous year.
Appellant was charged two days after the May 22, 2012
incident, and he proceeded to a two-day trial that commenced
on September 30, 2013. At trial both Ms. Glick and Ms. Potts
testified. On behalf of Appellant, defense counsel called
numerous character witnesses to testify. In addition, Appellant
testified in his own defense testifying that he had not known all
day there was a rip in his pants and he threw them out as soon
as he realized it that night. It was also part of the defense
theory that the victims were not Appellant’s type of women that
he is attracted to. Appellant admitted that he knew of no reason
that both victims would make up these allegations.
At the conclusion of the trial, a jury found Appellant guilty
of [one count of] indecent exposure. This [c]ourt found
Appellant guilty of two counts of harassment. Appellant was
sentenced on December 6, 2013. A post-sentence motion was
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filed on December 16, 2013, which was subsequently denied on
January 3, 2014. This timely appeal followed.
1925(a) Opinion, pp. 1-3 (record citations and quotations omitted).
Appellant raises the following claims for review:
1. Was the evidence insufficient as a matter of law to sustain
[Appellant’s] conviction for indecent exposure?
2. Was the evidence insufficient as a matter of law to sustain
[Appellant’s] convictions for harassment?
3. Even if the evidence was sufficient to sustain [Appellant’s]
convictions, were the verdicts nevertheless against the weight of
the evidence?
Appellant’s Brief, p. 4.
1. Sufficiency of the Evidence – Indecent Exposure
Appellant first claims the Commonwealth adduced insufficient evidence
to convict him of indecent exposure. He is incorrect.
When examining a challenge to the sufficiency of evidence, this Court’s
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
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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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011).
The Crimes Code defines indecent exposure as:
(a) Offense defined.–A person commits indecent exposure if
that person exposes his or her genitals in any public place or in
any place where there are present other persons under
circumstances in which he or she knows or should know that this
conduct is likely to offend, affront or alarm.
18 Pa.C.S. § 3127. “[I]t is well-established that the uncorroborated
testimony of the complaining witness is sufficient to convict a defendant of
sexual offenses.” Commonwealth v. Castelhun, 889 A.2d 1228, 1233
(Pa.Super.2005) (citations omitted); Commonwealth v. Trimble, 615 A.2d
48, 50 (Pa.Super.1992).
Here, the trial court explained the indecent exposure
testimony/evidence as follows:
In this case, the decisive and unwavering testimony of Ms.
Potts and Ms. Glick established that Appellant had a large gaping
rip in his khaki pants. The rip looked intentionally made with a
scissors. It was from [the] middle of the crotch area down to
about the knee area. A cut which would be hard not to notice,
contra to Appellant’s testimony that he was unaware there was a
rip in his pants. Additionally, Ms. Potts testified that the
unobstructed view of Appellant and the rip in his pants exposed
his erect penis and scrotum. This left Ms. Potts feeling horrified,
scared and really freaked out. This evidence showed that
Appellant exposed his erect penis and scrotum, seen by Ms.
Potts, under the guise of making small talk with Ms. Glick, who
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purposely obstructed her own view. It is reasonable to assume
that exposing his genitals under these circumstances to Ms.
Potts would offend, affront or alarm.
1925(a) Opinion, p. 12 (quotations omitted). Further, the trial court found
the Commonwealth victims’ testimony fully credible:
Ms. Potts’ and Ms. Glick’s testimony was decisive and never
waivered. Although each sister had a different vantage point of
the incident and their respective testimony reflected this
difference, their testimony was consistent with each other’s in all
other aspects. It is important to note that the incident occurred
at about 6:30 p.m. on May 22, 2012, when it was still light
outside. There was nothing even remotely unreliable about the
testimony of either victim.
Id. This Court is bound by the trial court’s credibility determinations. See
Commonwealth v. Gibson, 720 A.2d 473, 481 (Pa.1998) (“Credibility
determinations are strictly within the province of the finder of fact;
therefore, an appellate court may not reweigh the evidence and substitute
its judgment for that of the finder of fact.”).
Viewed in the light most favorable to the Commonwealth as verdict
winner, this evidence was sufficient to convict Appellant of indecent
exposure.
2. Sufficiency of the Evidence – Harassment
Appellant next claims the Commonwealth’s evidence was insufficient to
support his conviction for harassment because the Commonwealth did not
prove a course of conduct. Again, he is incorrect.
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The Crimes Code defines Harassment, in pertinent part, as follows:
(a) Offense defined.–A person commits the crime of
harassment when, with intent to harass, annoy or alarm
another, the person:
*****
(3) engages in a course of conduct or repeatedly commits acts
which serve no legitimate purpose[.]
18 Pa.C.S. § 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); see also Commonwealth v. Reynolds, 835 A.2d 720,
726 (Pa.Super.2003) (“Intent can be proven by circumstantial evidence and
may be inferred from the defendant’s conduct under the attendant
circumstances.”). Further, the statute defines “course of conduct” as:
A pattern of actions composed of more than one act over a
period of time, however short, evidencing a continuity of
conduct. Acts indicating a course of conduct which occur in
more than one jurisdiction may be used by any other jurisdiction
in which an act occurred as evidence of a continuing pattern of
conduct or a course of conduct.
18 Pa.C.S. § 2709(h).
Here, the trial court summarized the harassment-specific trial
testimony as follows:
. . . Ms. Potts testified that the May 22, 2012, incident was
similar in nature to about 3 or 4 previous incidents that occurred
throughout the previous year. She described one in particular in
which Appellant was wearing pajama type bottoms, which she
described as Eagles pants, without a zipper. It was open where
the zipper would be. On that occasion, Ms. Potts and Ms. Glick
were getting ready to go to the movies on a Saturday. As Ms.
Potts started driving forward after backing out of her driveway,
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she saw Appellant on his front porch with his penis sticking out
of his pants as he waived [sic] to the sisters. In about 3 other
incidents, Ms. Potts described how Appellant would go out to his
car as if he was doing something, and when he’d turn around
Ms. Potts observed that he had an erection. These incidents
made Ms. Potts feel very scared.
Ms. Glick described prior incidents as well. She testified
that in these other incidents, Appellant would be wearing flannel
Eagles bottoms with a flap in the front where the zipper would
be on regular pants. Appellant would come out of his home and
engage in small talk and all of a sudden Appellant would position
himself in such a manner that she could see he had an erection.
In particular, Ms. Glick recalled a time in which Appellant was
just standing there and his penis came out of his pants, and he
swiped over his penis to put it back in his pants. Ms. Glick
approximated that these incidents occurred about 15 times.
These incidents made Ms. Glick feel frightened.
1925(a) Opinion, pp. 13-14 (record citations and footnote omitted).
Viewed in the light most favorable to the Commonwealth as verdict
winner, this evidence illustrated Appellant engaged in repeated behavior
intended to harass, annoy, or alarm. Accordingly, the Commonwealth
adduced sufficient evidence to convict Appellant of harassment.
3. Weight of the Evidence
Finally, Appellant makes a weight of the evidence claim1 as to his
convictions based on alleged deficiencies in the victim-witnesses’ perception.
The claim lacks merit.
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1
Appellant properly preserved this claim by filing a post-sentence motion
that requested a new trial based on weight of the evidence. See
Pa.R.Crim.P. 607.
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This Court’s review of weight of the evidence claims is governed by the
following standard:
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the
weight of the evidence is addressed to the discretion of the trial
court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. A trial judge must
do more than reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal
citations, quotations, and footnote omitted).
Stated differently, a court may award a new trial because the verdict is
against the weight of the evidence only when the verdict is so contrary to
the evidence as to shock one’s sense of justice, 2 “such that right must be
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2
This Court has explained the notion of “shocking to one’s sense of justice”
as follows:
When the figure of Justice totters on her pedestal, or when the
jury's verdict, at the time of its rendition, causes the trial judge
to lose his breath, temporarily, and causes him to almost fall
from the bench, then it is truly shocking to the judicial
conscience.
(Footnote Continued Next Page)
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given another opportunity to prevail.” Commonwealth v. Goodwine, 692
A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight
claim consists of a review of the trial court’s exercise of discretion, not a
review of the underlying question of whether the verdict is against the
weight of the evidence. Widmer, 744 A.2d at 753. When reviewing the
trial court’s determination, this Court gives the gravest deference to the
findings of the court below. We review the court’s actions for an abuse of
discretion. Id.
The trial court’s 1925(a) opinion extensively and repeatedly discussed
the details of the victim-witnesses’ testimony and found both Ms. Potts and
Ms. Glick completely reliable. See 1925(a) Opinion, pp. 12, 15-16; see
Gibson, supra. Nothing about the verdict or the reasoning contained in the
trial court’s 1925(a) opinion shocks the conscience. The trial court did not
abuse its discretion in denying Appellant’s post-sentence motion for a new
trial based on the weight of the evidence.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
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