Com. v. Blum, C.

J-S68034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER BLUM, :
:
Appellant : No. 632 EDA 2014

Appeal from the Judgment of Sentence entered on January 14, 2014
in the Court of Common Pleas of Carbon County,
Criminal Division, No. CP-13-SA-0000065-2013

BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 26, 2014

Christopher Blum (“Blum”) appeals from the judgment of sentence

imposed after he was convicted of the summary offense of harassment,1

concerning an incident involving the minor victim, E.S.M., Jr. (hereinafter

referred to as “E.”). We affirm.

The trial court set forth the facts and procedural history underlying this

appeal in its Opinion, which we incorporate herein by reference. See Trial

Court Opinion, 4/10/14, at 1-4.2

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

1. Whether the [trial c]ourt erred in not dismissing the citation
and sustaining the appeal when the citation stated the date

1
See 18 Pa.C.S.A. § 2709(a)(3).
2
In response to Blum’s Notice of Appeal, the trial court ordered Blum to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
and Blum timely complied.
J-S68034-14

and time of the incident was June 29, 2013[,] at 1:50 PM,
[but] the testimony of the witnesses was that nothing
happened on that date or time[,] and Pa.R[.Crim.P.] 403
mandates that the date and time of the offense be inserted
into the citation?

2. Whether the [trial c]ourt erred in finding [Blum] guilty
when [he] was charged with [] harassment [] under section
2709(a)(3) of the [C]rimes [C]ode[,] which charged a
continuing course of conduct[,] but the testimony produced
was regarding a single incident and not even on the date
and time contained in the citation?

3. Whether the [trial c]ourt unfairly prejudiced [Blum] by
asking [E.] to identify [Blum] after the Commonwealth
failed to do so in direct testimony?

4. Whether the Commonwealth met its burden of proving each
element of the charge beyond a reasonable doubt?

Brief for Appellant at iv.

Blum first argues that the trial court should have dismissed the charge

because the citation was defective as it did not set forth the actual date of

the commission of the alleged offense,3 in violation of Pennsylvania Rule of

Criminal Procedure 403(A)(4).4 Id. at 7-11. Although Blum concedes that

“[a]ctual prejudice to a defendant [] is required before a summary case can

be dismissed for defects to the citation,” id. at 8-9 (citing Commonwealth

3
It is undisputed that the citation was defective in this regard. The record
reflects that the police officer who prepared the citation wrote thereon that
the offense occurred on June 29, 2013, the date on which the officer took a
written statement from E. In actuality, the offense had occurred a few days
prior.
4
Rule 403(A)(4) provides that “[e]very citation shall contain … the date and
time when the offense is alleged to have been committed, provided
however, if the day of the week is an essential element of the offense
charged, such day must be specifically set forth[.]” Pa.R.Crim.P. 403(A)(4).

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J-S68034-14

v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997)), he argues that he

was actually prejudiced by this defect and the charge should have therefore

been dismissed. See Brief for Appellant at 10-11. Specifically, Blum

summarizes his somewhat confusing claim of prejudice as follows:

In reviewing the citation as a whole, not only is the wrong
date and time inserted per the Commonwealth’s own
testimony[,] but the citation itself in charging Harassment[,
which,] pursuant to Section 2709(a)(3) of the Crimes Code[,] []
requires a course of conduct of an accused, states in the section
of the citation put there to describe the nature of the unlawful
actions that “To wit[, Blum] did harass, annoy or alarm another
and engage in a course of conduct or repeatedly commit acts
which serve no legitimate purpose.” [Criminal Citation,
6/29/13.] According to the Commonwealth, [Blum] …
committed an action on a different date and time than as is
alleged in the citation[. Also, the Commonwealth] alleged a
course of conduct but then refers to one date and time but later
argues that the conduct occurred over a period of time[,] which
is not contained in the citation[,] and for actions which are not
specified. Certainly, the notice requirements of the nature of the
charge filed against [Blum] have not been met. There is [] no
possible way that any person could be apprised of the nature of
actions described in this citation.

Id.

In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly addressed

Blum’s claim, discussed the applicable law, and determined that Blum was

not prejudiced by the defective citation and, therefore, not entitled to

dismissal of the charge. See Trial Court Opinion, 4/10/14, at 5-10. We

agree with the trial court’s sound rationale and affirm on this basis with

regard to Blum’s first issue. See id.

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J-S68034-14

Next, Blum contends that his conviction of harassment cannot stand

because that offense requires proof of a “course of conduct,” but, in the

instant case, E. testified that there was only one harassing incident between

him and Blum. See Brief for Appellant at 11-12.

The crime of harassment is defined at 18 Pa.C.S.A. § 2709, which

provides in pertinent part as follows: “A person commits the crime of

harassment when, with intent to harass, annoy or alarm another, the person

… engages in a course of conduct or repeatedly commits acts which serve no

legitimate purpose[.]” 18 Pa.C.S.A. § 2709(a)(3) (emphasis added)). The

statute defines the term “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.” Id. § 2709(f) (emphasis added); see

also Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super. 2002)

(stating that “a single act will not constitute a course of conduct under the

definition of harassment.”). This Court has “explained that course of

conduct by its very nature requires a showing of a repetitive pattern of

behavior.” Commonwealth v. Leach, 729 A.2d 608, 611 (Pa. Super.

1999) (citation and quotation marks omitted); see also Commonwealth v.

Duncan, 363 A.2d 803, 805 (Pa. Super. 1976) (stating that “[section] 2709

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J-S68034-14

requires repetition of the offensive conduct.” (emphasis in original)).5

In the instant case, once Blum had E. in his apartment, he went into

the kitchen to cook some food for E. N.T., 1/14/14, at 11-12. Blum

retrieved a package of sausages from the refrigerator, opened his pants

zipper, placed one of the sausages in the opening, and said to E., “Is it

bigger than yours or bigger than mine?” Id. Blum then said to E., “You

want to bite it off?” Id. at 12. E. replied in the negative. Id. Blum then

stated to E., “You’re sleeping here tonight[,]” to which E. replied “No, I’m

not[.]” Id. Blum persisted, stating, “You can sleep in my bed.” Id. E.

again replied “No.” Id. Blum’s entreaties did not cease until E. left the

apartment. Id. E. testified that Blum’s conduct made him feel embarrassed

and uncomfortable. Id.

In the apartment, Blum repeated his lewd and offensive conduct,

despite E.’s unequivocal statements that he did not wish to remain with

Blum or sleep with him. See Leach, 729 A.2d at 611 (stating that a course

of conduct can be established by a repetitive pattern of behavior); see also

5
Recently, an en banc panel of this Court, in Commonwealth v. Kelly,
2014 PA Super 243 (Pa. Super. 2014), engaged in a detailed analysis of the
meaning of the phrase “course of conduct” as used in the grading provision
of the corruption of minors statute, and held that “the use of the phrase
‘course of conduct’ in the first provision of [the statute] imposes a
requirement of multiple acts over time, in the same manner in which the
term is used in the harassment … statute[].” Id. at *14; see also id. at
**16-17 (holding that the appellant could not properly be convicted of the
felony grading of corruption of minors because the appellant’s prohibited
touching of the minor victim’s genitals constituted only a single prohibited
act, and not a course of conduct).

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J-S68034-14

Trial Court Opinion, 4/10/14, at 11 (stating that “[i]n reviewing [E.’s]

testimony, it is established that [Blum] continued the conduct even after it

was obvious that [E.] was becoming increasingly uncomfortable. The

conduct only ceased after E[.] stated that he wanted to leave and returned

home.”). This Court has held that “speaking can constitute a course of

conduct within the meaning of the [harassment] statute, given the proper

circumstances[.]” Duncan, 363 A.2d at 805 (holding that the appellant’s

conduct in repeatedly urging the victim to engage in unwanted sexual

conduct with him, despite her repeated refusals and asking the appellant to

leave, constituted a “course of conduct” that alarmed the victim); see also

id. (stating that “[the victim’s] replies made it clear, or should have made it

clear to a reasonable person, that continued entreaties would be offensive to

her.”). We conclude that the circumstances presented in the instant case

establish that Blum engaged in a course of conduct of harassing E. See id.;

see also Lutes, 793 A.2d at 961 (where the appellant and his co-defendant

confronted the victim outside of his workplace, blocked his path, and

repeatedly threatened to fight him, despite the victim’s requests to be left

alone, holding that this constituted a “course of conduct” for the purpose of

the appellant’s harassment conviction). Accordingly, Blum’s second issue

lacks merit.

In his third issue, Blum asserts that the trial court erred and unfairly

prejudiced him by asking E. to identify Blum for the record at the trial de

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J-S68034-14

novo, when the Commonwealth had failed to ask E. to identify Blum during

direct examination. See Brief for Appellant at 12-13 (arguing that the trial

court judge’s “insertion of himself into the proceedings by asking such a

question on such a fundamental issue unfairly … prevented [Blum] from

having a fair and impartial trial[.]”).6

In its Opinion, the trial court addressed this claim and the applicable

law, and determined that it did not err by asking E. to identify Blum for the

record because it did not prejudice Blum. See Trial Court Opinion, 4/10/14,

at 11-12. We affirm based on the trial court’s analysis concerning this issue.

See id.

Finally, Blum argues that the evidence was insufficient to find him

guilty of harassment beyond a reasonable doubt because (1) E. never

testified that he was annoyed or alarmed by Blum’s alleged conduct; rather,

E. only testified that he felt embarrassed and uncomfortable; and (2) the

Commonwealth failed to establish that Blum’s actions constituted a

continuing course of conduct. See Brief for Appellant at 13-14.

The trial court addressed this claim in its Opinion and determined that

Blum had waived it because Blum’s “[Rule 1925(b) C]oncise Statement did

not specify any elements of harassment nor did it address what evidence

[Blum] was challenging as insufficient for the Commonwealth to have met its

6
Blum concedes that he did not object to the trial court judge asking E. to
identify Blum. Brief for Appellant at 13.

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J-S68034-14

burden of establishing the elements of the crime.” Trial Court Opinion,

4/10/14, at 13.

This Court has stated that “when challenging the sufficiency of the

evidence on appeal, the [a]ppellant’s [court-ordered Rule 1925(b) concise]

statement must specify the element or elements upon which the evidence

was insufficient in order to preserve the issue for appeal.” Commonwealth

v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citations and quotation

marks omitted); see also Pa.R.A.P. 1925(b)(4)(ii) (providing that “[t]he

Statement shall concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for

the judge.”). If the appellant does not specify such elements, the sufficiency

claim is deemed waived. Gibbs, 981 A.2d at 281.

Here, we agree with the trial court that Blum waived his sufficiency

challenge based on his vague sufficiency challenge in his Concise Statement.

However, even if this claim was not waived, we would conclude that the

evidence was sufficient to convict Blum of harassment beyond a reasonable

doubt. Specifically, we have already determined that Blum’s actions toward

E. constituted a continuing course of harassing and lewd conduct, and that

the conduct only ceased when E. announced his desire to return home.

Moreover, we are unpersuaded by Blum’s claim that E.’s failure to

specifically state that he was annoyed and/or alarmed by Blum’s conduct

meant that the Commonwealth did not prove the intent element of the

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J-S68034-14

offense, and observe that Blum concedes that “it is not necessary to say

magic words to get the requisite intent[.]” Brief for Appellant at 14; see

also Commonwealth v. Melvin, 2014 PA Super 181, at *83 (Pa. Super.

2014) (stating that “[t]he Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2014

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(
.\ .

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

COMMONWEALTH OF PENNSYLVANIA,

vs. No. SA-065-2013

CHRISTOPHER R. BLUM,
Defendant

Jean A. Engler, Esquire Counsel for Commonwealth
Assistant District Attorney

Robert T. Yurchak, Esquire Counsel for Defendant

MEMORANDUM OPINION

Serfass, J. - April 10, 2014

Defendant, Christopher R. Blum (hereinafter "DefendantU),

has taken this appeal from his conviction on one (1) count of

the summary offense of harassment 1 following a trial de novo held

on January 14, 2014. Defendant .was sentenced to pay the costs

of prosecution and a fine of one hundred dollars ($100.00). We

file the following memorandum opinion in accordance with

Pennsylvania Rule of Appellate Procedure 1925 (a) and recommend

that our Order of Sentence entered on January 14, 2014 be

affirmed for the reasons set forth hereinafter.

FACTUAL AND PROCEDURAL BACKGROUND

On June 29, 2013, Trooper Martin Bibla (hereinafter

"Trooper Bibla U) met with and his father

regarding an incident that had taken place a few days prior

1 18 Pa.C.S.A. §2709(a) (3)
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thereto. (N.T., 1/14/2014, p. 17). At that time, Trooper Bibla

took a written statement from (Id. at

17). Upon completing the investigation, Trooper Bibla issued a

citation directed to the defendant,

count of harassment. The victim was

(hereinafter " E . ) .
charging him with one

identified as E_ (1)

On October 10, 2013, a hearing was conducted by Magisterial

District Judge Edward M. Lewis and Defendant was found guilty of

the aforesaid offense. The Magisterial District Court entered

judgment against the defendant and imposed fines totaling one

hundred dollars ($100.00). On November 7, 2013, the defendant

filed a "Notice of Appeal from Summary Criminal Conviction" with

this Court.

A trial de novo was held before the undersigned on January

14, 2014. It was established during the trial that EIII, a

thirteen (13) year old boy , lived with his mother in the Fort

Allen apartment building located at 401 Bridge Street,

Weissport, Pennsylvania. (Id. at 9). Christopher Blum

manager. E.
(hereinafter "Defendant") was employed as the apartment building

stated that

courtroom and later identified him to be Christopher Blum.
the defendant was in the

(Id.

at 9,

citation,

months
16).

and
E. had
At the time of the

had lived in the apartment

been to Defendant's
incident

apartment
referenced

building for

several
in

a

times.
the

few

[FS-14-14]
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("

(rd. at 10). They had interacted often during the time he lived

in the building. (rd. )

BIll testified that a few days prior to June 29, 2013, he

had an argument with his mother and ran out of the apartment

building. (rd. at 13, 15). He ran into the street screaming

profanities

Defendant
and was attempting to

attempted to calm E. "get hit by a

down.

stated that he did not want to return to his mother's apartment.
(rd. at
car".

24).
(rd. )

Eric

Defendant invited him to his apartment to "chill out for

a little bit." (rd. at 24) .

Ell was sitting on the couch when Defendant asked him if

he was hungry. (rd. at 11). Defendant went into the kitchen

and removed a package of hot dogs from the freezer. (rd. at

12). Defendant then placed one of the hot dogs in his zipper.

Defendant said "is it bigger than yours or bigger than

mine?" (rd. ) He then said "you want to bite it off?" and Eric

responded "no". (rd. ) He asked if Ell was going to spend the

night. (rd. )

could sleep in his bed.

stated that he
Eric said "no" .

felt
(rd. )

embarrassed by the
E.
(rd. ) He told

said "no".
E. that
(rd. )

comments and questions
he

Defendant asked. (rd. ) He went back upstairs to his apartment

and, in the morning, told his mother what had happened. (rd. )

Defendant's testimony conflicts with ~'s recollection of

the incident that took place in Defendant's apartment.
[FS-14-14J
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Defendant stated that after they went back to his apartment, he

asked EIII if he was hungry. (Id. at 24). EIII stated that he

was hungry and Defendant went to retrieve hot dogs from the

freezer. (Id. )

dogs near his navel area so

how many he wanted to eat.
E.
Defendant then claimed that he placed the hot

(Id. )
could see them and asked him

Defendant stated that •

started to fall asleep on the couch and told Defendant that he

"just want [ed] to go back upstairs" to his mother's apartment.

(Id. at 25) .

DISCUSSION

In his "Concise Statement of Matters Complained of on

Appeal," Defendant alleges that we erred in the following

respects:

1. By not dismissing the citation and sustaining the appeal

based upon a defective citation which failed to comply with

Pennsylvania Rule of Criminal Procedure 403 concerning the date

and time of the incident at issue;

2. By finding the defendant guilty when the defendant was

charged with harassment under 75 Pa.C.S.A. §2709(a) (3) which

requires a continuing course of conduct;

3. In questioning the victim regarding the identity of the

defendant; and

4. In determining that the Commonwealth had met its burden

of proving each element of the charge beyond a reasonable doubt.
[FS-14-14]
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We will address each of Defendant's contentions seriatim.

Ie Defective citation did not Prejudice Defendant

At the trial de novo, Defendant's counsel objected to the

citation and moved for dismissal of the charge on the basis that

the evidence presented did not demonstrate that any criminal

conduct occurred on June 29, 2013, the date of the offense as

listed on the citation. Pennsylvania Rule of Criminal Procedure

109 provides that "a Defendant shall not be discharged nor shall

a case be dismissed because of a defect in the form of a

complaint, citation, summons, or warrant, or a defect in the

procedures of these rules unless the Defendant raises the defect

before the conclusion of the trial in a summary case ... and the

defect is prejudicial to the rights of the Defendant." The

requirements for a criminal citation are set forth at

Pennsylvania Rule of Criminal Procedure 403 and include "the

date and time when the offense is alleged to have been

committed." Pa.R.Crim.P. 403(A) (4). Thus, in this case, the

"defect" identified by Defendant is that the citation indicates

that the offense occurred on June 29, 2013, when in fact the

testimony presented at the trial shows that the citation relates

to incidents that occurred several days prior thereto.

We agree that the citation in this case is defective,

in that it does not contain the actual date of the commission of

the offense pursuant to Pennsylvania Rule of Criminal Procedure
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{. \

403(A) (4). We note that the purpose of the citation is to set

forth the essential elements of a summary offense so that the

defendant has fair notice of the nature of the charges and can

properly prepare a defense. Commonwealth v. Borriello, 696 A.2d

1215, 1217 (Pa. Commw. ct. 1997). Therefore { the issue becomes

whether this defect has prejudiced the rights of Defendant in

denying him sufficient notice of the charge against him{ as well

as an opportunity to defend himself against that charge.

"Due process requires that notice be given to the accused

of the charges pending against him." Goldberg v. Commonwealth

of Pa., state Bd. of Pharmacy{ 410 A.2d 413{ 415 (Pa. Commw. ct.

1980). The citation need only show "a summary of the facts

sufficient to advise the defendant of the nature of the offense

charged{ notifying him of the pending prosecution and affording

him a chance to defend himself." Commonwealth v. Frye, 516 A.2d

38, 43 (Pa. Super. 1986). The description of an offense on

the citation is adequate so long as the defendant is made aware

of the nature of the charge. rd. Prejudice will not be

established where a defendant may be informed of the nature of

the offense through prior events and interactions that may have

taken place prior to the issuance of the citation. Commonwealth

v. Famiano{ 915 A.2d 1273, 1275 (Pa. Commw. Ct. 2007). Where a

defendant cannot show prejudice, the charges will not be

dismissed due to the defect. rd. Moreover, in situations where
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a summary citation is defective, prejudice to the defendant will

not result where the content of the citation, taken as a whole,

prevented surprise as to the nature of the summary offense of

which [the] defendant was found guilty at trial, .,. or the

omission does not involve a basic element of the offense

charged. Borriello, supra, at 1217.

The citation issued by Trooper Bibla was dated June 29,

2013. The witnesses testified that the incident had taken place

several days prior to the date the citation was issued.

Defendant cannot claim surprise. Defendant cannot establish

that he did not have sufficient notice of the allegations

against him or that he did not have the opportunity to

adequately prepare a defense. The citation was dated and issued

only a few days after the incident between EIII and the

defendant. Defendant should be aware of the nature of the

offense due to the close proximity in time of the date of the

citation and the interaction with Eric that took place prior to

the citation being issued. Furthermore, Defendant was provided

a written witness statement prior to the trial. N.T.,

1/14/2014, p. 4,6. The date and time of the witness statement

was recorded as June 29 2013 at 1:50.pm, the same date and time

as the citation. Id. at 6. Defendant retained counsel to

assist in preparing his defense. Defendant contacted witnesses

to testify on his behalf regarding the incident at both the
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summary proceeding in magisterial district court and the trial

de novo before this Court.

Clearly, the defendant was not prejudiced as a result of

the inaccurate date set forth on the citation. Unless a

particular date or day of the week is an essential element of

the offense, the Commonwealth is not required to prove that the

offense was committed on the date set forth in the citation2 •

Commonwealth v. Devlin, 333 A.2d 888, 890 (Pa. 1975). However,

the Commonwealth must prove that the offense was committed on

another reasonably certain date within the prescribed statutory

period 3 • Id. In matters where a child is the alleged victim,

"the Commonwealth must be allowed a reasonable degree of

flexibility ... in ascertaining the date of [a crime] against a

young child." Commonwealth v. Groff, 548 A.2d 1237, 1241 (Pa.

Super. 1988). Defendant's due process rights will not be

violated where the Commonwealth makes "a conscientious effort to

present evidence as to the date of the crime from witnesses

other than the victim" and restricts the date to a reasonable

time period. Id. at 1243.

During the trial, the Commonwealth presented evidence which

established that the incident took place only a few days prior

2 A person commits the crime of harassment when, with intent to harass, annoy
or alarm another, the person engages in a course of conduct or repeatedly
commits acts which serve no legitimate purpose.
3 Pursuant to 42 Pa.C.S.A. §5552(a), a prosecution for harassment must be
commenced within two (2) years after the commission of the crime.
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to the issuance of the citation. EIII is a thirteen (13) year

old boy who felt uncomfortable about his interaction with the

defendant. N.T., 1/14/2014, p. 9, 12. He waited until the next

day to tell his mother about Defendant's actions. rd. at 12.

The incident was reported to Trooper Bibla on June 29, 2013 and

the citation was issued on that same date. rd. at 17-18. The

Commonwealth was able to prove that there was a reasonably short

time period between the incident and the citation being issued.

Defendant should have been aware of the nature and events

surrounding the citation due to his previous interaction with

Eric.

Accordingly, Defendant has failed to establish that he

was prejudiced due to the defective citation. Under Devlin, the

Commonwealth does not need to prove that Defendant committed an

offense on June 29, 2013, the date listed in the citation, for

Defendant to be lawfully convicted of the offense of harassment

because the date of the commission of that offense is not an

essential element of the offense. Thus, the Commonwealth has

clearly met its burden to prove beyond a reasonable doubt that

Defendant committed the offense of harassment on a date which is

reasonably certain and within the prescribed statutory period.

Furthermore, because Defendant cannot demonstrate unfair

surprise or show that he was otherwise unable to prepare a

defense, the variations between the citation and the evidence
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presented at trial do not represent a violation of Defendant's

due process rights. Subsequently, the evidence presented was

sufficient to support the defendant's conviction on a summary

charge of harassment.

II. Continuing Course of Conduct

A person commits the crime of harassment when, with the

intent to harass, annoy, or alarm another, the person engages in

a course of conduct or repeatedly commits acts which serve no

legitimate purpose. 18 Pa.C.S.A. § 2709(a) (3). A "course of

conduct" is defined as "a pattern of actions composed of more

than one act over a period of time, however short, evidencing a

continuity of conduct." 18 Pa.C.S.A. §2709(f). The intent to

commit harassment may be inferred from the totality of the

circumstances. Commonwealth v. Beck, 441 A.2d 395, 398

(Pa.Super. 1982). Under the proper circumstances, speaking may

constitute a continuing course of conduct within the meaning of

the statute when a person repeatedly engages in conversation

with the intent to alarm, harass or annoy another person.

Commonwealth v. Duncan, 363 A.2d 803, 805 (Pa. Super. 1976)

In the instant case, the victim was thirteen (13) years old

and was clearly distraught following a heated argument with his

mother. The argument caused him to run out into the street in

an attempt to be struck by an automobile. N.T., 1/14/2014, p.

13. The defendant invited EIII into his home to calm down and
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(

sleep over if he wanted. Id. at 24. Defendant then proceeded

to make inappropriate comments and gestures towards ElIJ/causing

him to feel uncomfortable. Id. at 12. EIII repeatedly answered

Defendant's questions negatively and grew increasingly

uncomfortable. Id. Defendant testified that EIII left the

apartment and returned home before he had eaten dinner. Id. at

30.

In reviewing the testimony, it is established that

Defendant continued the conduct even after it was obvious that

the child was becoming increasingly uncomfortable. The conduct

only ceased after EIII stated that he wanted to leave and

returned home. Id. at 12. The defendant's repetitive

questions, lewd comments and gestures establish a continuing

course of conduct as defined in the statute.

III. The Court's Questioning of witness

The judge shall interrogate a witness when he conceives

that justice would so require. Commonwealth v. Purcell, 589

A.2d 217, 223-24 (Pa. Super. 1991). A judge is permitted to

question a witness when an important issue needs to be

clarified. Id. at 224. A defendant may be prejudiced if the

judge indicates any bias or feelings during the course of

questioning. Commonwealth v. Manuel, 844 A.2d 1 (Pa.Super.

2004) . A party may object to the court's examining of a

witness during questioning. Pa.R.E. 614(c). If a party does
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not timely object, they fail to preserve that issue for

appellate review. Commonwealth v. Smith, 606 A.2d 939 (Pa.

Super. 1992).

Defendant's counsel did not object when the Court asked

EIII to identify Christopher Blum in the courtroom. N.T.,

1/14/2014, p. 16. By not timely objecting, Defendant failed to

preserve the issue on appeal. However, even if the defendant

had preserved the issue, there would be no finding of prejudice.

As trier of fact, the Court is permitted to clarify an important

issue, such as the identification of the defendant. The

following exchange between the assistant district attorney and

EIII had occurred earlier in the trial:

Q: And,~, do you know Chris Blum?

A: Yes.

Q: Is he in court today?

A: Yes.

N.T., 1/14/2014, p. 9. We later asked EIII to identify

Christopher Blum in order to clarify that he was the defendant.

This question by the Court does not indicate any bias or

feelings towards the witness and does not prejudice the

defendant.

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IV. The Commonwealth's Burden to Establish the Elements of the
Crime

"If [an] [a]ppellant wants to preserve a claim that the

evidence was insufficient, the 1925(b) statement needs to

specify the element or elements upon which the evidence is

insufficient." Commonwealth v. Williams, 959 A.2d 1252, 1257

(Pa. Super. 2008). Pennsylvania Rule of Appellate Procedure

1925(b) is to be applied "in a predictable, uniform fashion, not

in a selective manner dependent on an appellee's argument or a

trial court's choice to address an unpreserved claim." Id.

When a defendant fails to specifically list the reasons in which

he believes the evidence was insufficient to sustain the charges

for which the defendant was found guilty, a situation is created

in which the claims of the appellee are too ambiguous to be

addressed by the trial court. Id. at 1258. Where a defendant

does not set forth the elements of the crime for which he is

convicted or address the specific elements that were not met,

the claim is waived. Commonwealth v. Gibbs, 981 A.2d 274, 281

(Pa. Super. 2009).

Defendant's concise statement did not specify any elements

of harassment nor did it address what evidence it was

challenging as insufficient for the Commonwealth to have met its

burden of establishing the elements of the crime. Therefore,

Defendant has waived any contention that the Commonwealth failed

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to meet its burden of "proving each element of the charge beyond

a reasonable doubt."

CONCLUSION

Based upon the foregoing, we respectfully recommend that

Defendant's appeal be denied and that our Order of Sentence

entered on January 14, 2014 be affirmed accordingly.

BY THE COURT:

/S'Z~~
serfass,~
Steven R.

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CODED

[FS-14-14]
14 APR 1 0 2014