J-A04027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ISAAC DOUGBA
Appellant No. 2063 EDA 2016
Appeal from the Judgment of Sentence dated June 6, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-SA-0000793-2015
BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*
DISSENTING MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 13, 2017
I respectfully dissent. Appellant was charged with harassment, which is
committed “when, with the intent to harass, annoy or alarm another, the
[defendant] . . . follows the other person in or about a public place or places.”
18 Pa. C.S. § 2709(a)(2). Here, the evidence is that the complainant was
approaching an intersection in Darby, Delaware County, when Appellant tried
to get her attention by beeping the horn of his truck. She quickly walked to
the intersection and turned left. Appellant entered the intersection and
turned right. By no construction of the English language can that conduct by
Appellant be considered “follow[ing] the other person.” It was the opposite
of following.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A04027-17
The complainant said that Appellant “turned his back” as he approached
the intersection, causing her to fear that he might get out of his truck; instead,
however, Appellant drove in the other direction. N.T., 4/12/16, at 4-10. The
complainant saw Appellant’s truck driving through Darby two more times that
day, once as it passed a gas station near her house and again as it approached
a post office. In neither case did Appellant give any indication that he saw
the complainant or was following her. As the complainant testified, Appellant
did not face her and “didn’t do anything as he was driving past.” N.T.,
4/12/16, at 8-9.
When reviewing the sufficiency of the evidence, our task is to determine
whether the evidence was sufficient to prove all elements of the offense
beyond a reasonable doubt. Commonwealth v. Smith, 985 A.2d 886, 894
(Pa. 2009), cert. denied, 562 U.S. 842 (2010). Here, there is no evidence
that Appellant did anything with an intent to harass, annoy, or alarm the
complainant. And even if Appellant’s beckoning to the complainant by beeping
his horn were to be considered intentionally alarming, there is no evidence
that Appellant followed the complainant after he did so. She went left and he
went right, and then he drove past a gas station and a post office. Because
the evidence is insufficient to prove harassment, Appellant’s judgment of
sentence should be reversed.
There is one more fact that should be noted here: the complainant —
the Commonwealth’s only witness — is a 13-year-old girl who did all the
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correct things when faced with what seemed to her to be potential danger.
When Appellant beckoned to her, she called her mother on her cell phone and
began “speed walking” to the intersection. And later she called the police and
testified at Appellant’s trial. In this age of heightened vigilance about potential
harm from strangers, the complainant’s conduct is understandable, and her
pursuit of justice is commendable. But a young teenager’s fear is not a basis
to convict someone of a crime, and our praise for the pursuit of justice should
not allow us to uphold a conviction that the evidence does not support.
The judgment of sentence should be reversed.
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