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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT WILLIAM DUNKEL, JR.,
Appellant No. 918 WDA 2015
Appeal from the Judgment of Sentence May 14, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No: CP-10-CR-0001098-2013
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2016
Appellant, Robert William Dunkel, Jr., appeals from the May 14, 2015
judgment of sentence entered in the Court of Common Pleas of Butler
County (“trial court”) following his conviction of harassment.1 Appellant
raises two issues on appeal that this court will address as challenges to the
weight and sufficiency of the evidence. Upon review, we affirm.
The trial court summarized the relevant background as follows:
At trial, the Commonwealth first presented the
testimony of [E.W.] [(“victim”)], then a resident of
Slippery Rock, Pennsylvania and a student at Slippery Rock
University. [The victim] testified that she met [Appellant]
in January of 2013 through friends. [The victim] testified
that the relationship with [Appellant] began casually, in
that [Appellant] would typically talk and joke with [the
victim’s] group of friends. In February of 2013, she
testified the relationship “started to get sexual.” [The
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1
18 Pa.C.S.A. § 2709.
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victim] indicated that [Appellant] became more “touchy
feely,” he began hugging her, and making generalized
sexual comments towards her. After a time, [Appellant]]
began making more direct sexual comments towards [the
victim], indicating it would be “hot” if she had sex with a
female friend. [Appellant] also indicated he was unable to
have sex because he was thinking about [the victim]. The
comments were often inappropriate or unrelated to the
conversations that were otherwise occurring. A few days
after making those comments, [Appellant] cornered [the
victim] between two tables and a wall outside of the
Slippery Rock University Library. He would not let [the
victim] leave until she gave him a hug.
Following that incident, on March 2, 2013, [the
victim] sent [Appellant] a message via Facebook in which
she indicated that [Appellant] needed to stop what he was
doing, that it was inappropriate, and that it made her
uncomfortable. After that message was sent, the actions
of [Appellant] ceased until April 8, 2013. On that day [the
victim] and a friend were walking on the Slippery Rock
University campus when [Appellant] began walking
towards them. [Appellant] approached and handed [the
victim’s] friend a piece of paper. It was a forged health
care document from, as [the victim] described it, a center
for disease control, that contained [the victim’s name] and
indicated that [the victim] had tested positive for syphilis.
At trial, the Commonwealth introduced the document as
Exhibit 1. [The victim’s] friend, [N.K.], told her
[Appellant] handed her the piece of paper and said he was
concerned about [the victim] because such a document
was easy to construct. A few days later, [the victim]
reported the incident to Slippery Rock University.
After she reported the incident, beginning on
approximately April 11, 2013, [the victim] testified, she
began seeing [Appellant] on campus. On one occasion
[Appellant] approached [the victim’s] group of friends and
began conversing with them. [The victim] left and
proceeded to walk to the dining hall. At approximately
9:00 that evening, [the victim] decided to go to another
dining hall. [The victim] saw [Appellant] there and
became frightened. [Appellant] looked at her “a few
times.” After phoning her mother, her mother called the
Slippery Rock University police. Based on [Appellant’s]
conduct, [the victim] became terrified and altered her
behaviors in several ways. She began carrying pepper
spray, going home more often, and traveling with others
on campus.
[R.Y.], a friend of [the victim], was the next witness
presented by the Commonwealth at trial. She indicated
that [Appellant] would often make comments of a sexual
nature regarding [the victim] during unrelated
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conversations. [R.Y.] testified that the behavior of [the
victim] changed as a result of [Appellant’s] actions. [The
victim] became more fearful, [R.Y.] testified.
The Commonwealth’s next witness was [L.D.], the
Director of Office of Student Conduct at Slippery Rock
University. [L.D.] indicated that she had a conversation
with [Appellant] on April 19, 2013, during which he
indicated that he had prepared the fake report which
indicated [the victim] had a sexually transmitted infection
and gave it to [N.K.]
Officer Tyler Gray, with the Slippery Rock Unviersity
Police Department, was the final witnesses presented to
testify. He indicated that he responded to the call made
by [the victim’s] mother. He testified that [Appellant] was
perhaps 100 yards away from [the victim] as he was
speaking to her. When [Appellant] was approached about
the incident, Officer Gray indicated that he laughed about
it. Officer Gray also testified that the false report
concerning the sexually transmitted infection was stamped
“received” by the student center, though the document
never went there.
Trial Court Opinion, 7/31/15, at 2-4 (internal citations omitted).
On January 7, 2015, the trial court held a summary non-jury trial in
absentia, wherein the trial court found Appellant guilty of harassment.
During a sentencing proceeding on February 24, 2015, Appellant was
removed from the courtroom and the matter was continued to a later date.
On May 14, 2015, Appellant was sentenced to ninety days in the Butler
County Prison. Appellant filed a timely notice of appeal on June 8, 2015. On
June 10, 2015, the trial court directed Appellant to file a concise statement
of matters complained of on appeal. The trial court granted two extensions
to file a concise statement, and Appellant filed a concise statement on July
30, 2015. The trial court issued an opinion on July 31, 2015.
On appeal, Appellant presents two issues which this Court quotes
verbatim.
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I. The [trial court] erred in determining that
[Appellant] was guilty beyond a reasonable doubt of
committing the offense of harassment. Whether as a
matter of fact [Appellant] could be convicted of the
[s]ummary [o]ffense of [h]arassment.
II. Whether as a matter of law [Appellant] could, on a
standard of proof beyond a reasonable doubt, be
convicted of the [s]ummary [o]ffense of
[h]arrassment. The [trial court] erred in this
conclusion.
Appellant’s Brief at 12. This Court views these unusually worded issues as
challenges to the weight and sufficiency of the evidence.
This Court’s standard of review for sufficiency of the evidence is well
established.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant's innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(quoting Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa. Super.
2013)). However, in order to address a challenge to the sufficiency of the
evidence, it must be preserved for appeal. See Commonwealth v. Tyack,
128 A.3d 254, 260 (Pa. Super. 2015).
If [a]ppellant wants to preserve a claim that the evidence
was insufficient, then the 1925(b) statement needs to
specify the element or elements upon which the evidence
was insufficient. This Court can then analyze the elements
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or elements on appeal. [Where a] 1925(b) statement []
does not specify the allegedly unproven elements[,] . . .
the sufficiency issue is waived [on appeal].
Id. (quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.
Super. 2008) (quoting Commonwealth v. Flores, 921 A.2d 517, 522-523
(Pa. Super. 2007))).
In the matter sub judice, Appellant’s 1925(b) statement failed to
specify the element or elements upon which the evidence was insufficient.
Therefore, Appellant’s claim is waived. Even if Appellant’s claim was
preserved for appeal, the claim is meritless.
To establish guilt of summary harassment, the Commonwealth must
prove: (1) the person engages in a course of conduct or repeatedly commits
acts which serve no legitimate purpose; and (2) does so with the intent to
harass, annoy or alarm another. 18 Pa.C.S.A. § 2709(a)(3). “An intent to
harass may be inferred from the totality of the circumstances.”
Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super. 2002). “A course
of conduct intended to harass, annoy or alarm a person can be based on
words alone.” Id. (citing Commonwealth v. Duncan, 363 A.2d 803 (Pa.
Super. 1976)).
The evidence established that Appellant made inappropriate sexual
comments on multiple occasions, blocked an exit and refused to let the
victim leave without hugging Appellant, and inappropriately hugged and
touched the victim. The victim sent Appellant a message on Facebook that
his actions were inappropriate, made the victim extremely uncomfortable,
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and he needed to stop the inappropriate behavior. After this message,
Appellant stopped for approximately one month.
Subsequently, on April 8, 2013, Appellant approached the victim and
her friend. The victim felt uncomfortable and continued walking. Appellant
gave the victim’s friend a forged medical document, which stated the victim
had a sexually transmitted disease, with instructions to give the victim the
document. Appellant admitted that he created the document. The day after
the victim reported this incident, Appellant followed the victim to multiple
dining halls. Viewing the evidence in the light most favorable to the
Commonwealth, there was sufficient evidence establishing that Appellant
engaged in a course of conduct which served no legitimate purpose with the
intent to harass, annoy, or alarm the victim. Appellant’s sufficiency claim is
meritless.
The Court views Appellant’s second issue as a challenge to the weight
of the evidence. It is well established that
[a]ppellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation
omitted). Furthermore, a weight of the evidence claim “concedes that there
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is sufficient evidence to sustain the verdict.” Commonwealth v. Smith,
853 A.2d 1020, 1028 (Pa. Super. 2004) (citation omitted). In order to
preserve a challenge to the weight of the evidence, the concise statement
must include specific reasons as to why the verdict was against the weight of
the evidence. See Commonwealth v. Freeman, 128 A.3d 1231, 1248-49
(Pa. Super. 2015).
In the matter sub judice, Appellant’s 1925(b) statement failed to
identify any specific reason why the verdict was against the weight of the
evidence. Therefore, Appellant has waived this issue. Furthermore,
Appellant failed to preserve a weight of the evidence claim by raising it
before the trial court. A challenge to the weight of the evidence must be
raised orally, on the record, at any time before sentencing, by written
motion at any time before sentencing, or in a post-sentence motion. See
Pa.R.Crim.P. 607. While post-sentence motions are not permitted in a
summary appeal, Appellant must still assert a challenge to the weight of the
evidence in order to preserve the issue for appeal. See Commonwealth v.
Dougherty, 679 A.2d 779, 784 n. 3 (Pa. Super. 1996); Pa.R.Crim.P. 720.
Because he did not do so, the claim is waived. Id.
Even if Appellant preserved the issue on appeal, he would not be
entitled to relief. It appears Appellant is challenging the credibility of the
victim, which is not for this Court to assess or reweigh. See
Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (“The
weight of the evidence is exclusively for the finder of fact, which is free to
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believe all, part or none of the evidence, and to assess the credibility of the
witnesses.) Accordingly, we would not have found the trial court abused its
discretion in denying his weight of the evidence challenge based on
credibility issues.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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