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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LYNN ADELE HARMER :
:
Appellant : No. 2986 EDA 2016
Appeal from the Judgment of Sentence August 25, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-SA-0000689-2016
BEFORE: LAZARUS, J., OTT, J. and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED JULY 14, 2017
Lynn Adele Harmer appeals from the judgment of sentence imposed
August 25, 2016, in the Montgomery County Court of Common Pleas. The
trial court found Harmer guilty of two counts of harassment (course of
conduct),1 and imposed a fine of $300.00, plus costs, on each count. On
appeal, Harmer contends the trial court erred and abused its discretion when
it failed to find her actions were constitutionally protected activity. For the
reasons below, we affirm.
The charges in this matter arose via two summary citations for
harassment issued by the Lower Salford Township Police Department in
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S § 2709(a)(3).
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December 2015, and March 2016. Harmer resides at 480 Freeman School
Road in Harleysville, Pennsylvania. The victims of her crimes were her next
door neighbors – Marian Kidd, her son Joseph Kidd, his wife Nicole, and their
two young children - who live at 490 Harleysville Road, Harleysville,
Pennsylvania. As the trial court explains, Harmer’s “hostility at her
neighbors stems from a disputed property line and the usage of a shared
driveway.” Trial Court Opinion, 11/9/2016, at 2.
The court summarized the incidents leading to the present charges as
follows:
The episodes of aggressive behavior which gave rise to this
case started in December of 2015, when [Harmer] exited her
home and began yelling at Joseph Kidd, as he parked his sister-
in-law’s car. The police were called as a response to the incident
and as a result the first citation was issued. A hearing on the
citation was conducted in Magisterial District MDJ-38-1-24 before
the Honorable Albert J. Augustine, Magistrate on March 9, 2016.
This Court gleaned from the trial testimony, that Judge
Augustine issued a verbal order, directing that the parties not
have any contact with each other. The day after the hearing, on
March 10, 2016, [Harmer] entered onto the property of the
victim family, in violation of the verbal order from Magistrate
Augustine, and destroyed and removed a rose bush from in front
of a flagpole located on the property belonging to the Kidd
family.6 The conduct of [Harmer] alarmed victim Nicole Kidd so
much, that she began to record the activities of [Harmer] that
day, on her iPad, from the inside of her home. [Harmer]
received a citation … as a result of that incident. Yet, in spite of
the criminal citations and ‘stay away’ order, [Harmer] continued
to victimize the Kidd family. On April 7, 2016, [Harmer] began
to scream at victim Mari[a]n Kidd, after she had backed her car
into a parking space, and as she attempted to enter her home.
During that episode [Harmer] was observed with a hammer in
her hand.7 [Harmer] was also observed as she placed metal
stakes along the shared driveway. Joseph Kidd, also recorded
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video of instances where [Harmer] can be seen engaged in rants
and tirades, directed toward his family members.
__________
6
[Harmer] testified on cross examination that “I never
thought that he meant that I verbally couldn’t say
something to them.[”] N.T. at pg. 49.
7
[Harmer] testified on cross examination, that she had a
hammer and a stake to plant grass. N.T. at pg. 49.
Id. at 2-3 (some footnotes and record citations omitted).
On June 16, 2016, Harmer appeared before a magisterial district
justice, and was found guilty on both the summary citations. She filed a
timely appeal to the trial court, which conducted a de novo trial on August
25, 2016. During the trial, the Commonwealth played for the court the
videotaped episodes of Harmer’s behavior, which the Kidds had recorded on
their iPad.2 Harmer testified in her own defense, asserting she owns the
property in question, and had “every right to take a rosebush or plant
grass[.]” N.T., 8/25/2016, at 41. At the conclusion of trial, the court found
Harmer guilty of two counts of summary harassment, and imposed a $300
fine, plus costs, on each count. This timely appeal follows.3
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2
Although the videos were marked for identification, and moved into
evidence, they were not included in the certified record because they were
retained by the Kidds on their iPad. See N.T., 8/25/2016, at 15, 21.
3
On September 23, 2016, the trial court ordered Harmer to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Harmer complied with the court’s directive and filed a concise statement on
October 11, 2016.
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On appeal, Harmer contends the trial court erred in failing to conclude
her actions were “constitutionally protected activity,” and therefore, not
prosecutable under the harassment statute.4 18 Pa.C.S. § 2709(e). See
Harmer’s Brief at 7, 13. Specifically, she insists her “activities were
motivated by and consisted of her desire and effort to acquire, possess, and
protect her property[,]” which she accomplished through her constitutional
right to “free speech and redress of grievances.” Harmer’s Brief at 7.
Moreover, Harmer maintains that although the trial court recognized this
was a property dispute, it “refused to consider allowing defining evidence on
that matter[,]” and, consequently, violated her due process right to
fundamental fairness. Id. at 9. Furthermore, Harmer argues the
Commonwealth failed to prove she acted with the requisite intent to harass
or annoy the Kidds and without any legitimate purpose. Id. at 11-12.
We regard Harmer’s issues on appeal as a challenge to the sufficiency
of the evidence supporting her convictions. Our standard of review of such
claims is well-settled:
Viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, and taking all
reasonable inferences in favor of the Commonwealth, the
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4
We note Harmer purports to raise two issues on appeal: the first,
addressing her constitutional right to protect her property, and the second,
addressing her constitutional right to free speech and redress of grievances.
See Harmer’s Brief at 7, 13. However, in her second issue, she simply
incorporates the arguments from her first issue. See id. at 13. Therefore,
we will address the issues together.
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reviewing court must determine whether the evidence
supports the factfinder’s determination of all of the
elements of the crime beyond a reasonable doubt.
The fact-finder “bears the responsibility to resolve questions of
credibility, and, absent extraordinary circumstances, an
appellate court will not substitute its judgment for that of the
factfinder.” A court “is free to believe all, some, or none of the
evidence presented.” “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.”
Commonwealth v. Blackham, 909 A.2d 315, 319 (Pa. Super. 2006)
(internal citations omitted), appeal denied, 919 A.2d 954 (Pa. 2007).
Here, Harmer challenges her conviction of two counts of harassment.
A person may be guilty 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. §
2709(a)(3). 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.” Id. at § 2709(f). Furthermore,
this Court has held that a defendant’s “intent to harass may be inferred from
the totality of the circumstances” and “[a] course of conduct … can be based
on words alone.” Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super.
2002) (citations omitted). Significant to this appeal, the statute also
explicitly provides: “This section shall not apply to constitutionally protected
activity.” 18 Pa.C.S. § 2709(e).
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There is a dearth of case law interpreting what constitutes
“constitutionally protected activity” as to avoid prosecution for harassment. 5
Id. In Commonwealth v. Duncan, 363 A.2d 803 (Pa. Super. 1976) (en
banc), an en banc panel of this Court considered whether a defendant’s
repeated request that the complainant engage in a sexual act with him
constituted harassment. The complainant, who had been sleeping in the
lounge of her dormitory, rebuffed the defendant several times and asked
him to leave. When he finally did, she reported the incident to her resident
adviser. See id. at 805. On appeal from his conviction of harassment, the
defendant argued, inter alia, “his conviction … was based solely on a verbal
communication and therefore was in violation of his rights under the First
Amendment to the United States Constitution.” Id. at 806. However, the
en banc panel disagreed, noting “the right of free speech is not absolute at
all time and under all circumstances.” Id., quoting Chaplinksy v. New
Hampshire, 315 U.S. 568, 571 (1943). The panel concluded that the
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5
We note subsection (e) was not added until June of 1993, and originally
read as follows: “This section shall not apply to conduct by a party to a
labor dispute as defined in the act of June 2, 1937 (P.L. 1198, No. 308),
known as the Labor Anti-Injunction Act, or to any constitutionally
protected activity.” 1993, June 23, P.L. 124, No. 28, § 1, imd. effective
(emphasis added). Effective January of 2016, the statute was further
amended to reflect its current form, and omit the language regarding labor
disputes. 2015, Nov. 4, P.L. 224, No. 59, § 1, eff. 60 days [Jan. 4, 2016].
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defendant’s “lewd and non-political suggestions do not … have the protection
of the First Amendment.”6 Duncan, supra, 363 A.2d at 806.
The following year, in Commonwealth v. Bender, 375 A.2d 354 (Pa.
Super. 1977) (en banc), the en banc Court vacated a defendant’s
harassment conviction, finding that his actions were “ostensibly protected by
both the United States and Pennsylvania Constitutions which guarantee
citizens the right to petition the government for a redress of grievances and
to speak freely.” Id. at 359. In that case, the defendant was convicted of
harassment after he lodged complaints against two police officers with the
Internal Affairs Division and the Mayor’s Service Office, based on his belief
they had mishandled his gun permit application. He continued to pursue the
complaints “even though he was repeatedly informed that the police officers
had followed appropriate procedures[.]” Id. at 358. In vacating the
conviction, the en banc panel commented: “We should be extremely
reluctant to infer a criminal intent to harass solely from the filing of
complaints with appropriate government agencies and the making of
telephone calls during regular office hours lest we impermissibly chill a
citizen’s constitutional freedoms.” Id. at 359.
In Commonwealth v. Wheaton, 598 A.2d 1017 (Pa. Super. 1991), a
panel of this Court once again vacated a defendant’s conviction of
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6
As explained in footnote 5, supra, at the time of the defendant’s
conviction, the statute did not include the subsection (e) exemption.
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harassment. There, the defendant disputed a bill sent to him by the Water
Association. See id. at 1018. In doing so, he visited two of the water
trustees, one at a barber’s shop and the other at the trustee’s home, and
threatened to file a lawsuit if his water service was terminated. See id.
Although the panel did not discuss the defendant’s actions in constitutional
terms, it did find that the defendant acted with a “legitimate purpose,” and
again cautioned trial courts from “finding that a criminal intent can be
inferred from making complaints.” Id. at 1020.
Our research has uncovered only one published decision applying
subsection (e) to the facts of the case - Commonwealth v. Burlingame,
672 A.2d 813 (Pa. Super. 1996). However, in that case, the defendants
were charged with harassment based on their conduct while picketing their
employer’s business during a labor dispute. See id. at 814. The trial
court granted the defendants’ motion for habeas corpus, concluding “since
[the defendants] were parties to a labor dispute at the time they engaged in
[the offensive] conduct, the provisions of section 2709(e) required dismissal
of the harassment charges.”7 Id. The Commonwealth appealed the
dismissal of the charges, and a panel of this Court affirmed, holding:
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7
As noted supra, at the time the Burlingame defendants were arrested,
subsection (e) of the harassment statute read as follows: “This section shall
not apply to conduct by a party to a labor dispute as defined in the act
of June 2, 1937 (P.L. 1198, No. 308), known as the Labor Anti-Injunction
(Footnote Continued Next Page)
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Section 2709(e) provides, quite simply, that section 2709 of the
Crimes Code, which defines the crime of harassment, does not
apply to conduct by a party to a labor dispute as that term is
defined by the Labor Anti–Injunction Act. Since it is beyond
question that [the defendants’] conduct, however offensive,
occurred during a labor dispute to which they were parties, it is
shielded from prosecution under the harassment statute and the
charges were properly dismissed.
Id. Therefore, while the panel found subsection (e) excused the defendant’s
conduct, it did not do so on the same grounds alleged herein.
In the present case, the trial court concluded that Harmer’s actions
were not constitutionally protected. First, the court distinguished Wheaton
and Bender by noting that, in those decisions, “the conduct of the
appellants consisted of seeking redress to arguably legitimate grievances,
and doing so with restrained although repetitive actions.” Trial Court
Opinion, 11/9/2016, at 12. The court explained:
In this case had [Harmer] endeavored to redress her stated
property ownership dispute via the means of continuing to file
trespass complaints against her neighbors, or endeavored to
continue to contact township authorities in regard to her
grievance, she might have been afforded constitutional
protection for those types of activities.
Id. However, the trial court found that the actions Harmer took to address
her property dispute were different in kind from those in the prior cases.
The court opined:
_______________________
(Footnote Continued)
Act, or to any constitutionally protected activity.” 1993, June 23, P.L. 124,
No. 28, § 1, imd. effective (emphasis added). See supra, n.5.
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Here, [Harmer] chose to continue to verbally assault her
neighbors at every opportunity. She repeatedly endeavored to
engage them in verbal disputes, so much so that the police were
constantly being called to the homes in an effort to keep the
peace. This court could easily infer the intent to harass or annoy
from the testimony of each Commonwealth witness, as to the
pervasiveness of the conduct of [Harmer]. It was imminently
clear to this [c]ourt that the intent of [Harmer] was to deny the
victim Kidd family the quiet enjoyment of their home, and to
continue to annoy the family even after receiving criminal
citations, and after a hearing before a magistrate. It was also
clear to the court, that the victim Kidd family was indeed
harassed by the conduct of [Harmer], so much so that the Kidd
family children were afraid to come out of the house when they
saw [Harmer].
The video evidence which this [c]ourt viewed left no
room for doubt. In Duncan, [supra,] the Court said [“]we
emphasize that a defendant’s acts must seriously offend the
average person[.”] This court found that [the] actions of
[Harmer] would have seriously offended any reasonable person.
It is this [court’s] determination that criminal conduct occurred,
which was not entitled to any constitutional protection.
Id. at 12-13 (emphasis added).
Our review of the record reveals ample support for the trial court’s
ruling. Although Harmer insists her actions were “motivated by” a property
dispute,8 she took no reasonable steps to resolve the conflict. Rather, she
repeatedly berated the Kidds and destroyed their property, even after being
ordered to refrain from having any contact with them by a magisterial
district justice. See N.T., 8/25/2016, at 10 (Harmer walked through Kidds’
flower bed); 13 (Harmer placed metal stakes along driveway and stared at
Mrs. Kidd the day after “no contact” order); 15-16 (Harmer removed
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8
Harmer’s Brief at 7.
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rosebush from Kidds’ flowerbed); 23-24 (Harmer repeatedly yelled at Kidd
children “asking them to tell their mommy and daddy to give back her
bricks.”). Moreover, the trial court had the unique opportunity to view
videotaped evidence of the encounters, which the court found “left no room
for doubt” that Harmer’s actions were not constitutionally protected by her
right to protect her property, her right to free speech, or her right to redress
grievances. Trial Court Opinion, 11/9/2016, at 13. Indeed, when
announcing its verdict, the court commented: “I think that [Harmer] went
way beyond just simply trying to protect constitutional rights. I think she
did it with a degree of subterfuge.” N.T., 8/25/2016, at 58. Accordingly,
the evidence presented at trial was sufficient to establish Harmer, acting
with the intent to harass, annoy or alarm the Kidds, engaged in a course of
conduct, which served no legitimate purpose. See 18 Pa.C.S. § 2709(a)(3).
Because we conclude the evidence was more than sufficient to support
the verdict, and the trial court did not err in concluding Harmer’s actions
were not “constitutionally protected activity,” 9 Harmer is entitled to no
relief.10
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9
18 Pa.C.S. § 2709(e).
10
We note Harmer raises several additional claims in the argument section
of her brief, arguing: (1) the harassment statute is unconstitutionally
vague; (2) “the absence of fundamental fairness fatally infected the trial[;]”
and (3) her conduct was “at most” a “de minimis infraction … not warranting
criminal sanctions[.]” Harmer’s Brief at 8, 9, 11. However, none of these
claims were included in her court-ordered Rule 1925(b) statement. See
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
_______________________
(Footnote Continued)
Concise Statement of Errors Complained of on Appeal, 10/11/2016.
Accordingly, they are waived on appeal. Commonwealth v. Diamond, 83
A.3d 119, 136 (Pa. 2013), cert. denied, 135 S.Ct. 145 (U.S. 2014).
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