J-S49041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLENE MAY SMITH,
Appellant No. 223 MDA 2015
Appeal from the Judgment of Sentence of December 11, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000935-2014
BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 20, 2015
Appellant, Charlene May Smith, appeals from the judgment of
sentence entered on December 11, 2014, following her bench trial
convictions for two summary counts of harassment.1 Upon review, we
affirm.
We briefly summarize the facts and procedural history of this case as
follows. On January 11, 2014, police, firefighters and members of
emergency medical services (EMS) responded to Appellant’s house upon
receiving a telephone call that Appellant’s husband (Mr. Smith) had gone
into cardiac arrest. Once inside, police and firefighters implemented
standard practices to secure the area and to keep others from interfering
____________________________________________
1
18 Pa.C.S.A. § 2709.
J-S49041-15
with medical care. Mr. Smith was in a bedroom on the second floor. There
was blood on Mr. Smith, the bed, and the wall. EMS suspected that a
firearm might have been involved. Sergeant Mark Stonebreaker, an officer
with the Highspire Police Department, told family members to remain
downstairs. He positioned himself at the top of the stairs to secure the
scene while EMS performed CPR on Mr. Smith. Appellant attempted to come
upstairs, but Sergeant Stonebreaker directed her three or four times to stay
on the first floor or he would arrest her. Appellant continued up the stairs
and Sergeant Stonebreaker told her that she could not see Mr. Smith.
Appellant clenched her fists, continued to ascend the stairs, and said, “I’m
gonna see my husband, you can’t stop me.” A brief scuffle ensued.
Sergeant Stonebreaker physically moved Appellant down a few stairs, but
she steadfastly held onto the banister. Sergeant Stonebreaker told
Appellant to remove her hand from the railing or he would use a taser on her
hand. When Appellant refused, Sergeant Stonebreaker tased Appellant’s
hand, she released the banister, screamed in pain, yelled profanities at
Sergeant Stonebreaker, and proceeded back downstairs. The EMS workers,
hearing the fray between Appellant and Sergeant Stonebreaker and fearing
for their safety, barricaded the bedroom door where they were performing
CPR. Ultimately, EMS was unable to resuscitate Mr. Smith. The coroner
later determined that Mr. Smith died of complications from lung cancer.
The Commonwealth initially charged Appellant with resisting arrest,
criminal attempt – obstructing emergency services, harassment – subjecting
-2-
J-S49041-15
others to physical contact, harassment – course of conduct with no
legitimate purpose, and obstructing emergency services. Prior to trial, the
Commonwealth withdrew all of the charges, except the two summary
harassment offenses. Following a bench trial, the court found Appellant
guilty of both charges. The trial court sentenced Appellant to two
consecutive terms of three months’ probation. This timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
A. Whether the Commonwealth presented insufficient
evidence to prove each and every element of [s]ummary
[h]arassment where [] Appellant did not strike, shove,
kick or cause physical contact nor attempt[ed] to do so,
nor threaten[ed] to do so, and where [] Appellant’s only
intent was to see her dead husband?
B. Whether the Commonwealth presented insufficient
evidence to prove [h]arassment by a course of conduct
where [] Appellant engaged in one single act of
attempting to see her dead husband?
Appellant’s Brief at 6.
Appellant’s issues challenge the sufficiency of the evidence to support
each of her convictions for harassment. Accordingly, we will examine them
____________________________________________
2
Appellant filed a notice of appeal on Monday, January 11, 2015. The notice
of appeal was timely because Appellant had 30 days from the date of
judgment of sentence to file her notice of appeal and the thirtieth day fell on
a Saturday. See Pa.R.A.P. 903 (time for appeal); see also 1 Pa.C.S.A.
§ 1908 (computation of time). On January 14, 2015, the trial court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on February 2,
2015. On February 25, 2015, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
-3-
J-S49041-15
together.3 First, Appellant claims that she did not engage in a course of
conduct to support her conviction under 18 Pa.C.S.A. § 2709(a)(3). More
specifically, she claims that her actions “consisted of a single attempt to
proceed up the steps of her own house in order to see her dead/dying
husband.” Id. at 12. Appellant claims that the incident with Sergeant
Stonebreaker lasted anywhere from one to 10 minutes. Id. at 12, 16.
Next, Appellant claims that “at no point did [she] strike, kick or otherwise
subject another to physical contact” to support her conviction pursuant to 18
Pa.C.S.A. § 2709(a)(1). Id. at 13. Appellant argues that Sergeant
Stonebreaker was the aggressor. Id. Thus, Appellant argues, “the issue
becomes whether she attempted or threatened” physical contact. Id. at 14.
Appellant suggests that the EMS misapprehended the medical emergency as
possibly involving a gunshot wound and, as a result, “the EMS and Officer
Stonebreaker incorrectly and without cause assumed [] Appellant was a
threat to her dying/dead husband or the EMS and police.” Id.
Our standard of review is well settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
____________________________________________
3
Despite presenting the issues as separate questions for review, Appellant
argues both issues simultaneously. For future reference, we direct counsel
to our rules of appellate procedure. See Pa.R.A.P. 2119(a) (“The argument
shall be divided into as many parts as there are questions to be argued[.]”).
However, because there is no impediment to our review, we will examine
both issues as presented.
-4-
J-S49041-15
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
trier of fact, while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014)
(citation, brackets, and original emphasis omitted).
The trial court convicted Appellant of two different counts of
harassment, 18 Pa.C.S.A. §§ 2709(a)(1) and (a)(3), which provide in
pertinent part:
(a) Offense defined.--A person commits the crime of
harassment when, with intent to harass, annoy or alarm
another, the person:
(1) strikes, shoves, kicks or otherwise subjects the
other person to physical contact, or attempts or
threatens to do the same;
* * *
(3) engages in a course of conduct or repeatedly
commits acts which serve no legitimate purpose[.]
-5-
J-S49041-15
18 Pa.C.S.A. § 2709.
“An intent to harass may be inferred from the totality of the
circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super.
2013). “‘Course of conduct’ means a pattern of actions composed of more
than one act over a period of time evidencing a continuity of conduct, a
single act will not support a conviction.” Commonwealth v. Battaglia, 725
A.2d 192, 194 (Pa. Super. 1999).
In this case, regarding Section 2709(a)(1), the trial court determined:
Appellant, while understandably upset as she suspected her
husband was dead and wanted to be near him, was angry
and red-faced. She ascended the stairs of the home despite
repeated warnings not to do so. She clenched her fists in
anger and even raised one hand as if to strike the officer.
All of this, she did with the intent to alarm Sgt.
Stonebreaker enough to move him out of her way. Indeed,
it is clear that the EMS workers, the firefighters and the
police officer on the scene were all alarmed by Appellant’s
actions. They all testified that they feared for either their
own safety or the safety of the EMS workers and the safety
of the patient.
Certainly raising her fist was a threat or an attempt to
subject Sgt. Stonebreaker to physical contact and, while he
acknowledged that he did ultimately initiate physical
contact, he felt threatened and he was subjected to physical
contact and her resistance to removing her during the tussle
on the landing.
Trial Court Opinion, 2/25/2015, at 9-10.
Regarding Section 2709(a)(3), pertaining to a course of conduct, the
trial court concluded:
Appellant continued to ascend the stairs; she grasped the
spindles of the banister to prevent Sgt. Stonebreaker from
-6-
J-S49041-15
removing her and did this all for no legitimate purpose.
While she testified that her purpose was to be with her dead
husband, and we sympathize with her, there is no
legitimate purpose, there is no constitutionally protected
right, to disobey a police officer who is trying to allow EMS
workers to revive [her] husband. Her actions actually
forced the EMS workers to stop attempting resuscitation in
order to barricade themselves in the bedroom with her
husband.
Id. at 10.
We agree that there was sufficient evidence to support both
harassment convictions. Captain Brian Ceace, of the Highspire Fire
Department, was a first responder on the scene. N.T., 12/102014, at 6.
Captain Ceace testified that Sergeant Stonebreaker was on hand to secure
the scene. Id. at 15. Captain Ceace testified that Sergeant Stonebreaker
“asked [Appellant] to stay downstairs [and] [l]et EMS do their job.” Id. at
17. Sergeant Stonebreaker repeated himself three or four times. Id. When
Appellant persisted, Sergeant Stonebreaker told her that he would have to
arrest her if she continued. Id. at 18. Captain Ceace also told Appellant
“to please listen to the officer.” Id. at 19. Appellant continued up the
stairs and held onto the railing. Id. at 21. Sergeant Stonebreaker told
Appellant to remove her hands from the banister or he would use a taser.
Id. at 21-22. Captain Ceace opined that Sergeant Stonebreaker used every
means necessary to diffuse the situation before ultimately tasing Appellant.
Id. at 24. Captain Ceace also testified that he witnessed Appellant “ball up
her fists” and it was possible that she was going to take a swing at Sergeant
Stonebreaker. Id. at 31.
-7-
J-S49041-15
Sergeant Stonebreaker testified similarly. He stated that he pled with
Appellant not to come upstairs and to allow EMS to do their job
uninterrupted. Id. at 113-114. Appellant continued up the stairs, stating,
“I’m gonna see my husband and you can’t stop me.” Id. at 116. Sergeant
Stonebreaker described Appellant as “very red in the face, very angry.” Id.
He “could see that her hands [were] clenched into fists [and] her teeth were
clenched.” Id. “[A]t one point, she brought a hand up [] to strike [Officer
Stonebreaker] or push past” him. Id. at 128. Sergeant Stonebreaker “was
expecting an attack was imminent.” Id. When he tried “to get her turned
around to get her to go back down the steps[,]” there was a brief “tussle on
the staircase[.]” Id. at 117. Appellant grabbed the banister, would not let
go, and Sergeant Stonebreaker warned her that he would have to arrest her.
Id. at 118. Thereafter, Sergeant Stonebreaker again warned Appellant “at
least on three occasions” he would use a taser. Id. at 122. When Appellant
still refused, Sergeant Stonebreaker used the taser on Appellant’s hand. Id.
The foregoing establishes that police told Appellant that she could not
come upstairs so as not to interfere with EMS. She exclaimed that she was
going to do so despite these warnings and that police could not stop her.
When we examine these words in conjunction with Appellant’s physical
actions – continuing up the stairs despite repeated warnings, clenching her
fists and teeth, and raising her arm to the officer – it is clear that Appellant
attempted or threatened physical contact under Section 2709(a)(1). In
addition, while Sergeant Stonebreaker may have physically touched
-8-
J-S49041-15
Appellant first, Sergeant Stonebreaker testified that a brief tussle resulted.
Hence, there was physical contact by Appellant despite police commands.
Moreover, regarding course of conduct, the record belies Appellant’s
characterization of the altercation. While she claims there was a single
attempt to proceed up the steps, it is obvious from the record that she
continued to do so multiple times despite continued warnings, police
intervention, and threats of arrest and being tased. This was not a single
attempt at climbing the stairs and then acquiescence. Appellant’s
persistence shows she repeatedly committed acts which served no legitimate
purpose4 showing a course of conduct to support a conviction under Section
2709(a)(3). Accordingly, we reject Appellant’s claim that there was
insufficient evidence to support both summary harassment convictions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2015
____________________________________________
4
Appellant does not challenge the trial court’s determination that her
actions served no legitimate purpose. Thus, we need not address this
element of harassment under, Section 2709(a)(3).
-9-