J-S13018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MANDY SUE STINE :
:
Appellant : No. 899 WDA 2017
:
Appeal from the Judgment of Sentence May 2, 2017
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001469-2016
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 25, 2018
Appellant, Mandy Sue Stine, appeals from the judgment of sentence
entered on May 2, 2017, in the Blair County Court of Common Pleas. 1
We affirm.
The record reveals that in 2015, David Leonard began working as a
confidential informant (“CI”) for the Altoona Police Department. N.T., 2/9/17,
at 44. As a CI, Mr. Leonard purchased controlled substances from drug
dealers, and police officers would then arrest those dealers. Id. Mr. Leonard’s
work as a CI directly led to Appellant’s arrest. Id. at 45.
1 While Appellant purports to appeal from the trial court’s order denying her
post-sentence motion, the appeal properly lies from the May 2, 2017 judgment
of sentence. Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa.
Super. 2001). We have corrected the caption accordingly.
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On March 7, 2016, Appellant and Mr. Leonard were both seated in a
courtroom in the Blair County Courthouse in Hollidaysburg, Pennsylvania.
Appellant was in the courtroom as a result of Mr. Leonard’s work as a CI, and
Mr. Leonard was there as a defendant on a separate drug-related matter.
Appellant was seated behind Mr. Leonard. Mr. Leonard claimed that when
Appellant sat down behind him, she made threatening comments to him. N.T.,
2/9/17, at 26. Mr. Leonard testified that Appellant called him a snitch and
blamed him for her arrest. She told him that she knew where he lived, would
burn his house down, and intended to hurt him. Id. Mr. Leonard also testified
that after Appellant threatened him in the courtroom, she aggressively
followed him in her car back to Altoona. Id. at 31. Mr. Leonard stated that
during this pursuit, he applied the brakes suddenly to get behind Appellant’s
car, which enabled him to acquire Appellant’s license plate number and call
the police. Id.
On August 19, 2016, the Commonwealth charged Appellant with making
terroristic threats, retaliation against a witness or victim, and harassment. 2
Following a jury trial, Appellant was found guilty of retaliation against a
witness or victim and not guilty of making terroristic threats. 3 Verdict, 2/9/17.
On May 2, 2017, the trial court sentenced Appellant to a term of one to twenty-
2 18 Pa.C.S. §§ 2706(a)(1), 4953(a), and 2709(a)(2), respectively.
3 The disposition of the summary offense of harassment is unclear from the
record.
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three months of incarceration for the retaliation conviction. Appellant filed a
timely post-sentence motion, which was denied on May 22, 2017, and on
June 8, 2017, Appellant filed a timely notice of appeal. On July 19, 2017, the
trial court directed Appellant to file and serve upon the court a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant filed a timely Pa.R.A.P. 1925(b) statement on July 28, 2017. The
trial court initially did not draft an opinion but rather provided a statement
asserting that it was relying upon the record. Pa.R.A.P. 1925(a) Notice,
10/31/17.4
On appeal, Appellant raises four issues for this Court’s consideration:
I. Whether the trial court erred in finding sufficient evidence to
support the verdict because the [C]omm[on]wealth’s evidence
consisted of one to three adverse verbal statements followed by
benign driving conduct that fails to get to the severity contained
in Commonwealth v. Ostrosky, 909 A.2d 1224 (Pa. 2006).
II. Whether the trial court erred in denying [Appellant’s] dismissal
motion that the verdict was not supported by the weight of the
evidence submitted at trial. Commonwealth v. Ostrosky, 909 A.2d
1224 (Pa. 2006).
III. Whether the trial court erred when the court denied a post
sentence motion for a new trial where [Appellant] alleged a Brady
v. Maryland violation because the investigating officer failed to
recover easily available and material in-court video of the alleged
incident. Brady, 373 U.S. 83 (1963).
IV. Whether the trial court erred when it denied [Appellant’s]
motion for a new trial alleging the verdict should also be set aside
because Leonard was a “confidential informant” not a “witness”
according to the plain language of the statute leading to the
4 On April 23, 2018, our Court remanded this matter to the trial court to draft
an opinion. The trial court filed its opinion on May 17, 2018.
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conclusion that, by definition, there cannot be … sufficient or
weighty evidence to sustain the verdict.
Appellant’s Brief at 7.
Appellant first challenges the sufficiency of the evidence. Our standard
of review for a challenge to the sufficiency of the evidence 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 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 finder 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. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011)
(citation omitted). “A challenge to the sufficiency of the evidence is a question
of law, subject to plenary review.” Commonwealth v. Williams, 871 A.2d
254, 259 (Pa. Super. 2005) (citation omitted). “The Commonwealth need not
preclude every possibility of innocence or establish the defendant’s guilt to a
mathematical certainty.” Id. (citation omitted).
As noted above, Appellant was found guilty of retaliation against a
witness. That crime is defined as follows:
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(a) Offense defined.--A person commits an offense if he harms
another by any unlawful act or engages in a course of conduct or
repeatedly commits acts which threaten another in retaliation for
anything lawfully done in the capacity of witness, victim or a party
in a civil matter.
18 Pa.C.S. § 4953(a).
Appellant avers that the evidence was insufficient to establish the crime
of retaliation, and she cites Commonwealth v. Ostrosky, 909 A.2d 1224
(Pa. 2006), as support for her argument. Appellant’s Brief at 10. In
Ostrosky, our Supreme Court concluded that a single threat, without actual
harm, does not constitute objective harm. Ostrosky, 909 A.2d at 1233.
Therefore, a single threat does not satisfy the requirements for a conviction
of retaliation. Id. Appellant avers that here, there was at most a single
threat; thus, just as in Ostrosky, the evidence was insufficient to prove
retaliation. Appellant’s Brief at 11.
While Appellant’s verbal threat to Mr. Leonard at the courthouse may
constitute a single threat, we must also consider Appellant’s motor-vehicle
pursuit of Mr. Leonard. Mr. Leonard testified that Appellant followed him and
was “right on [his] tail.” N.T., 2/9/17, at 30. Mr. Leonard further stated that
Appellant followed him, weaving in and out of traffic, and when he sped up,
she sped up, and when he slowed down, she slowed down. Id. at 30-31.
Appellant’s pursuit of Mr. Leonard was aggressive, and it compelled him to
use evasive driving maneuvers to position his car behind Appellant’s. Id. at
31. This evasive driving was done in order for Mr. Leonard to obtain
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Appellant’s license plate number. Id. Appellant’s behavior caused
Mr. Leonard to call 911 to report Appellant’s conduct, and Appellant continued
her antagonizing pursuit. Id. Mr. Leonard testified that Appellant’s behavior
worried him, and he feared for his safety and that of his family. Id.
Viewing the evidence in the light most favorable to the Commonwealth,
we conclude that Appellant’s verbal threats to Mr. Leonard, coupled with the
motor-vehicle pursuit, constituted a course of conduct, i.e., Appellant’s
behavior was more than a single threat. Ostrosky, 909 A.2d at 1232.
Therefore, we find that the evidence was sufficient to establish the crime of
retaliation.
In her next issue on appeal, Appellant challenges the weight of the
evidence and claims that she is entitled to a new trial. We have held that “[a]
motion for new trial on the grounds that the verdict is contrary to the weight
of the evidence, concedes that there is sufficient evidence to sustain the
verdict.” Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super.
2016) (quoting Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).
Our Supreme Court has described the standard applied to a weight-of-the-
evidence claim as follows:
The decision to grant or deny a motion for a new trial based upon
a claim that the verdict is against the weight of the evidence is
within the sound discretion of the trial court. Thus, “the function
of an appellate court on appeal is to review the trial court’s
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight of
the evidence.” An appellate court may not overturn the trial
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court’s decision unless the trial court “palpably abused its
discretion in ruling on the weight claim.” Further, in reviewing a
challenge to the weight of the evidence, a verdict will be
overturned only if it is “so contrary to the evidence as to shock
one’s sense of justice.”
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations
omitted). A trial court’s determination that a verdict was not against the
weight of the evidence is “[o]ne of the least assailable reasons” for denying a
new trial. Commonwealth v. Colon-Plaza, 136 A.3d 521, 529 (Pa. Super.
2016) (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A
verdict is against the weight of the evidence where “certain facts are so clearly
of greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.
Super. 2003) (quoting Widmer, 744 A.2d at 751–752)). “[W]e do not reach
the underlying question of whether the verdict was, in fact, against the weight
of the evidence. . . . Instead, this Court determines whether the trial court
abused its discretion in reaching whatever decision it made on the motion[.]”
Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation
omitted).
A challenge to the weight of the evidence must first be raised at the trial
level “(1) orally, on the record, at any time before sentencing; (2) by written
motion at any time before sentencing; or (3) in a post-sentence motion.”
Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). Although
Appellant’s weight claim lacked specificity, we are satisfied that she preserved
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her challenge by: 1) raising the issue in a post-trial motion filed on April 26,
2017; 2) discussing the weight of the evidence at the sentencing hearing on
May 2, 2017 (N.T., 5/2/17, at 4); and 3) challenging the weight of the
evidence in her post-sentence motion filed on May 5, 2017. Nevertheless, we
conclude that there was no abuse of discretion in the trial court denying
Appellant’s motion for a new trial in the order filed on May 22, 2017.
As discussed above, the evidence against Appellant amply established
her guilt of retaliation against Mr. Leonard. Mr. Leonard testified that
Appellant verbally threatened him inside the courtroom and later engaged in
an aggressive automobile pursuit causing Mr. Leonard to fear for his safety.
N.T., 2/9/17, at 29-31. As the finder of fact, the jury was free to credit the
testimony as it saw fit, and it was free to believe all, part, or none of the
evidence, and to assess the credibility of the witnesses. Commonwealth v.
DeJesus, 860 A.2d 102, 107 (Pa. Super. 2004). Indeed, the jury found
Mr. Leonard credible and convicted Appellant of the crime of retaliation.
Nothing in the jury’s verdict or the trial court’s denial of Appellant’s post-
sentence motion shocks our sense of justice, and we discern no abuse of
discretion in the trial court’s denial of Appellant’s post-sentence motion.
Accordingly, Appellant is due no relief on this claim.
In her third issue, Appellant asserts that the trial court erred when it
denied her post-sentence motion for a new trial based on an alleged violation
of Brady v. Maryland, 373 U.S. 83 (1963). Appellant claims that one of the
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investigating officers failed to recover a video recording of the interaction
between Appellant and Mr. Leonard that occurred in the courtroom where
Appellant threatened Mr. Leonard. We conclude that this claim is meritless.
In Brady, the Supreme Court of the United States held that “the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”
Commonwealth v. Adams, 177 A.3d 359, 363 n.10 (Pa. Super. 2017)
(internal citation omitted). Rule 573 of the Pennsylvania Rules of Criminal
Procedure was promulgated in response to the dictates of Brady.5
Commonwealth v. Melvin, 103 A.3d 1, 32 (Pa. Super. 2014) (citation
omitted). In order to succeed on a Brady claim, the defendant must show:
(1) evidence was suppressed by the prosecution; (2) the
evidence, whether exculpatory or impeaching, was favorable to
the defendant; and (3) prejudice resulted. Commonwealth v.
Daniels, 628 Pa. 193, 104 A.3d 267, 284 (2014), citing
Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 30
(2008). A Brady violation exists only where the suppressed
evidence is material to guilt or punishment, i.e., where there is a
reasonable probability that, had the evidence been disclosed, the
result of the proceeding would have been different. Id. In
determining whether a reasonable probability of a different
outcome has been demonstrated, “the question is not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict worthy of
confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995). A “reasonable probability” of a
5 Pa.R.Crim.P. 573 provides, inter alia, that the Commonwealth has a duty to
disclose inculpatory and exculpatory evidence.
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different result is shown when the government’s suppression of
evidence “undermines confidence in the outcome of the trial.”
United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87
L.Ed.2d 481 (1985).
Commonwealth v. Cousar, 154 A.3d 287, 301 (Pa. 2017).
In the case at bar, the record reflects that the officer who investigated
the charges against Appellant, Officer Mark Lingafelt, testified that during his
investigation, he did not know there was a camera in the courtroom. N.T.,
2/9/17, at 52. Therefore, the prosecution was not aware of the existence of
any recording from the courtroom, and nothing in Brady or in Pa.R.Crim.P.
573 requires the prosecution to produce evidence of which it is unaware. See
Commonwealth v. Boczkowski, 846 A.2d 75, 97 (Pa. 2004) (stating that
the Commonwealth does not violate Rule 573 when it fails to disclose to the
defense evidence that it does not possess and of which it is unaware).
Moreover, even if the prosecution had been aware of the video
recording, Appellant cannot establish prejudice. Officer Lingafelt testified that
after he learned that recording equipment was present in the courtroom, he
subsequently determined that courtroom recordings are video only, and no
audio is recorded. N.T., 2/9/17, at 52. Because neither party disputes that
there was some interaction between Appellant and Mr. Leonard, a video
recording without audio would not have resulted in a different outcome at trial
because there would have been no evidence of the language Appellant used,
threatening or otherwise.
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In her final claim of error, Appellant argues that the trial court erred
when it denied her motion for a new trial because Mr. Leonard was a
“confidential informant” not a “witness” under 18 Pa.C.S. § 4953, and thus,
he could not be a victim of retaliation. As this issue presents a question of
statutory interpretation, our scope of review is plenary and the standard of
review is de novo. Commonwealth v. Grove, 170 A.3d 1127, 1141 (Pa.
Super. 2017). The object of all statutory interpretation is to ascertain and
effectuate the intention of the General Assembly, and the best indication of
the legislature’s intent is the plain language of the statute. Id. at 1142. When
the words of a statute are clear and unambiguous, we may not go beyond the
plain meaning of the language of the statute under the pretext of pursuing its
spirit. Id. However, only when the words of the statute are ambiguous should
a reviewing court seek to ascertain the intent of the General Assembly through
considerations of the various factors found in 1 Pa.C.S. § 1921(c). Id.
(citations omitted).
Appellant suggests the term “confidential informant” is not a category
of potential victims under 18 Pa.C.S. § 4953. Appellant’s Brief at 16.
Appellant then cites to a proposed amendment to Section 4953. Appellant
argues that this proposed amendment supports her assertion that CIs cannot
be victims of retaliation because they are not specifically enumerated in the
current version of Section 4953.
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The proposed amendment provides as follows:
(a) Offense defined.--A person commits an offense if he harms
another by any unlawful act or engages in a course of conduct or
repeatedly commits acts which threaten another in retaliation for
anything lawfully done in the capacity of confidential informant,
witness, victim or a party in a civil matter.
2015 Pennsylvania House Bill No. 793 (proposed amended language
underscored). The proposed amendment adds the term “confidential
informant” but changes nothing else. While the proposed amendment to
Section 4953 seeks to add CI as a specific category of victim, we cannot
conclude that under the current law, a CI cannot be a witness.
For purposes of crimes involving victim and witness intimidation, which
are enumerated in 18 Pa.C.S. §§ 4951-4958, a witness is defined as follows:
“Witness.” Any person having knowledge of the existence or
nonexistence of facts or information relating to any crime,
including but not limited to those who have reported facts or
information to any law enforcement officer, prosecuting official,
attorney representing a criminal defendant or judge, those who
have been served with a subpoena issued under the authority of
this State or any other state or of the United States, and those
who have given written or oral testimony in any criminal matter;
or who would be believed by any reasonable person to be an
individual described in this definition.
18 Pa.C.S. § 4951. We discern nothing ambiguous in the wording of this
statute. Giving every word of the statute its plain meaning as we must, 6
Mr. Leonard satisfies every requirement for a “witness.” Mr. Leonard had
knowledge of facts relating to Appellant committing a drug-related crime.
6 Grove, 170 A.3d at 1142; 1 Pa.C.S. § 1921.
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N.T., 2/9/17, at 24. We conclude that Mr. Leonard was a witness as defined
by the statute, and his additional or separate standing as a CI is immaterial.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2018
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