J-S17021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE D. TAYLOR :
:
Appellant : No. 579 EDA 2018
Appeal from the Judgment of Sentence January 11, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002699-2017
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED MAY 10, 2019
Appellant, Jesse D. Taylor, appeals from the judgment of sentence
entered on January 11, 2018, following his bench trial conviction for
harassment, 18 Pa.C.S.A. § 2709(a)(1). Upon review, we affirm.
The trial court summarized the facts and procedural history of this case
as follows:
[Appellant] was arrested and charged with simple assault and
harassment. At trial, the Commonwealth presented two police
witnesses. Sergeant [Timothy] Walters responded to [a home on]
Walnut Ridge Estates in Lower Pottsgrove, Montgomery County
with two other officers to locate a subject who had just left the
area. Sergeant Walters was met at the door of the residence by
[E.T.]1 who was approximately 5’11[’’] and 135 pounds. [E.T.]
was described by Sergeant Walters as upset, distraught, and
scared. [E.T.] was disheveled, with ruffled clothing, and had
redness on her neck and shoulder area. Sergeant Walters further
observed a bump on the back of [E.T.’s] head when [E.T.] moved
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1 We use the victim’s initials to protect her identity.
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her head to show the Sergeant the area she was complaining
about. Inside the residence, a large screen [television] was
flipped over, there were splintered wood items in the dining room,
and there were broken pottery pieces in the kitchen. Sergeant
Walters also noted that the home was unusually dark which
Sergeant Walters later discovered was due to the [circuit]
breakers in the basement being turned out, not tripped.
Eventually, Sergeant Walters came into contact with [Appellant].
[Appellant] admitted that he lived [at the residence in question]
and was married to [E.T.]. [Appellant] was several yards from
the home when police encountered him. Sergeant Walters was
familiar with [Appellant] from prior domestic disturbance calls.
Officer [Matthew] Kemp testified that he responded to the same
location as Sergeant Walters and was looking for the male that
left the location. [Appellant] was located and told police that his
wife “had gotten up in his face and he pushed her away on two
separate occasions.” [Appellant] had no injuries.
[After the presentation of the Commonwealth’s evidence,
Appellant moved] for judgment of acquittal on all charges, and
[the trial] court granted the judgment of acquittal on simple
assault. The motion for judgment of acquittal was denied on
harassment. [The trial] court found [Appellant] guilty of summary
harassment and sentenced [him] to 60 days of probation plus
domestic violence counseling. Post-sentence motions were timely
filed and ultimately denied by [the trial] court on January 25,
2018. On February 20, 2018, [Appellant] filed a timely notice of
appeal. [Appellant filed a timely court-ordered concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
March 26, 2018.]
Trial Court Opinion, 3/26/2018, at 1-2 (superfluous capitalization and record
citations omitted).
On appeal, Appellant presents the following issues2 for our review:
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2 We have reordered the issues for ease of discussion and disposition.
Additionally, we note that Appellant presented other issues in his Rule 1925(b)
statement, but he does not challenge those issues on appeal. As such, we
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I. Was Appellant’s [c]onstitutional [r]ight to [c]onfrontation
denied where the police, the Commonwealth, and [trial
c]ourt relied on heard or inferred statements of a
complainant who was not present in court and thus could
not be cross-examined?
II. Was evidence of the crime of [h]arassment insufficient
where the only testimony introduced was that of arresting
officers who appeared on the scene after-the-fact and have
no direct knowledge of the incident in question, and where
Appellant’s admission as to physical contact does not
support a finding of the requisite intent?
Appellant’s Brief at *1 (missing page number).
On the first issue we examine, Appellant argues that the trial court erred
by denying his right to confront the victim at trial and allowing the
investigating police officer to testify about statements she made to him when
he responded to an anonymous 911 telephone call about a possible domestic
dispute. Id. at 11-14. Solely citing the United States Supreme Court’s
decision in Crawford v. Washington, 541 U.S. 36 (2004), Appellant claims:
Testimonial statements of witnesses absent from trial can be
admitted only where the declarant is unavailable, and only where
the defendant has had a prior opportunity to cross-examine.
[The] collective testimony presented [at trial] implie[d] that a
female complainant made various statements to police, accus[ed]
the defendant of causing an injury to her head and of fleeing the
home. Those implied statements resulted in the investigation,
arrest, and the charges that led to [] Appellant’s conviction. The
prosecution relied on the implied testimony to make the
Commonwealth’s argument that that [there was a] domestic
assault[]. Statements from the complainant were, thus,
____________________________________________
find them waived. See Commonwealth v. Hernandez, 39 A.3d 406, 412
(Pa. Super. 2012) (failure to develop argument with citation to and analysis
of relevant authority waives issue on appeal); Pa.R.A.P. 2119(b); Pa.R.A.P.
2101.
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incorporated into the trial and the accused should have had the
opportunity to cross-examine his accuser.
Id. at 13-14 (original brackets, quotations, footnote, and citations omitted).
“Whether a defendant was denied his right to confront a witness under
the confrontation clause of the Sixth Amendment is a question of law for which
our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa. Super. 2017) (citation
and brackets omitted).
Applicable herein, this Court has summarized the law pertaining to
confrontation as such:
In Crawford, the trial court admitted the tape-recorded
statement of a wife implicating her husband as the perpetrator in
a stabbing. The wife was unavailable at trial because the husband
objected to her testimony on marital privilege grounds.
Washington state law did not prohibit introduction of the wife's
tape-recorded statement so long as it bore adequate indicia of
reliability. The Washington Supreme Court ultimately concluded
the wife's statement bore sufficient indicia of reliability to warrant
its admission at trial. The husband argued the wife's statement
violated his rights under the Confrontation Clause, regardless of
its admissibility under state law.
The United States Supreme Court held the wife's statement
inadmissible under the Confrontation clause. The principle evil at
which the Confrontation Clause was directed was the civil-law
mode of procedure, and particularly its use of ex parte
communications as evidence against the accused. Likewise, the
Framers would not have allowed admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had a prior opportunity
for cross-examination. The Crawford Court found no occasion to
offer a comprehensive definition of [“]testimonial.[”] Whatever
else the term covers, it applies at a minimum to prior testimony
at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.
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Commonwealth v. Williams, 103 A.3d 354, 358–359 (Pa. Super. 2014)
(internal citations and quotations omitted).
The United States Supreme Court, in subsequent decisions, clarified the
scope of “testimonial evidence” as examined in Crawford as such:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later
criminal prosecution.
The Supreme Court confirmed that the protection of the
Confrontation Clause attaches only to testimonial hearsay.
Id. at 359 (citation omitted).
Moreover,
[t]he existence of an ongoing emergency is important because it
indicates that the declarant's purpose in speaking was to help
resolve a dangerous situation rather than prove past events. The
zone of potential victims and the type of weapon involved inform
the inquiry. […D]omestic violence cases[] often have a narrower
zone of potential victims.
* * *
The medical condition of the victim is important to the primary
purpose inquiry to the extent that it sheds light on the ability of
the victim to have any purpose at all in responding to police
questions and on the likelihood that any purpose formed would
necessarily be a testimonial one. The victim's medical state also
provides important context for first responders to judge the
existence and magnitude of a continuing threat to the victim,
themselves, and the public.
Id. at 360–361.
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Here, police responded quickly to an emergency telephone call “for a
domestic dispute that was occurring” at the subject residence. N.T.,
12/26/2017, at 8 and 18. Upon initial contact, the victim appeared “very
upset[,] distraught, [and] scared” and was “[s]lightly disheveled.” Id. at 10.
Her clothes were ruffled, she had redness around her neck and shoulder area,
and she had a lump on the back of her head. Id. at 10-11. Inside the house,
a window was broken and covered with cardboard and duct tape. Id. at 13.
There were fractured pieces of furniture, splintered wood, and broken pottery
or dishware covering the floor of the kitchen and a large, flat-screened
television was overturned. Id. The house was dark, even though it was
daytime, and police checked the circuit breaker to find that the electricity had
been physically turned off. Id. at 14-15. Appellant was not present. Id. at
15-16.
Based upon all of the foregoing, we conclude that the victim’s
statements to police were nontestimonial and made under circumstances
objectively indicating that the primary purpose of her exchange with the
responding officers was to enable police to meet an ongoing emergency.
Police responded close in time to the emergency telephone call. Upon arrival,
police witnessed that the victim suffered injuries and was visibly upset, the
house where the alleged altercation occurred was dark and disheveled, and
Appellant was still at large. As first responders, the officers elicited responses
from the victim to judge the existence and magnitude of a continuing threat
to her, themselves, and the public. The primary purpose of the questioning
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was not to establish or prove past events potentially relevant to later criminal
prosecution. Instead, the primary purpose of the challenged exchange was to
enable an assessment of the situation and the formulation of a responsive
plan. As such, we discern no error in admitting the victim’s nontestimonial
statements at trial through the testimony of the investigating police officers.
Accordingly, Appellant’s first issue lacks merit.
Next, Appellant asserts that the evidence at trial was insufficient to
sustain his conviction for harassment. Appellant’s Brief at 6-11. More
specifically, Appellant argues that
there was no showing of intent. The record shows merely that
police responded to a call to find a woman who was distraught and
that they witnessed some signs of a home out of order. The
evidence does not provide any insight into the exact nature,
timing, or cause of the alleged disturbance, nor do the
circumstances observed by officers arriving at the scene provide
any link to Appellant absent conjecture regarding what the content
of the complainant’s inadmissible hearsay would be.
Id. at 7. Appellant also argues that because the trial court determined that
there was insufficient evidence of bodily injury to sustain a conviction for
simple assault, the evidence was also insufficient to support his harassment
conviction. Id. at 7-8. He contends that the only evidence of record regarding
any contact between Appellant and the complainant was Appellant’s own
statement to police that the complainant had “gotten up in his face” and that
he “pushed her away twice.” Id. at 8. Appellant suggests that such evidence
“indicates that the intention behind the push[ing] was aimed to create and
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preserve personal body space [and] was responsive, as opposed to
provocative.” Id. at 9.
Our standard of review is as follows:
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. Montanez-Castro, 198 A.3d 377, 380 (Pa. Super. 2018)
(internal citation and original brackets omitted).
“A person commits the crime of harassment when, with intent to harass,
annoy or alarm another, the person [] strikes, shoves, kicks or otherwise
subjects the other person to physical contact, or attempts or threatens to do
the same[.]” 18 Pa.C.S.A. § 2709(a)(1).
Here, viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner as our standard requires, we conclude
that there was sufficient evidence to sustain Appellant’s conviction for
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harassment. Initially, we reject Appellant suggestion that because the trial
court determined that there was insufficient evidence of bodily injury to
sustain a conviction for simple assault, the evidence was also insufficient to
support his harassment conviction. This Court has previously noted that
“physical affronts that do not result in ‘bodily injury,’ and therefore do not
constitute a simple assault, would likely be addressable under the summary
offense of harassment which specifically includes conduct where the actor
‘strikes, shoves, kicks or otherwise subjects him to physical contact.’”
Commonwealth v. Wertelet, 696 A.2d 206, 211 (Pa. Super. 1997) (citation
omitted). In this case, Appellant readily admitted to the police that he shoved
the victim twice. As such, there is no dispute that physical contact with the
victim occurred as required for harassment. Moreover, Appellant’s argument
that the evidence showed that he was instinctively reacting to the victim’s
affront of his personal space, views the evidence in the light most favorable
to himself in contravention of our standard of review. The trial court was free
to believe all, part, or some of the evidence presented. Aside from Appellant’s
self-serving statements to the responding officers that he pushed the victim
because she was physically menacing him, there was no other record evidence
in support of that assertion. Finally, the trial court determined that “[w]hen
viewing [Appellant’s] statement[s to police] in the context of the injuries on
the complainant, the short time period in which the events occurred, and the
state of the house when police arrive[d], it is clear that, at a minimum,
[Appellant] intended to harass, alarm, or annoy his wife[.]” Trial Court
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Opinion, 3/26/2018, at 13. We discern no error or abuse of discretion, as the
trial court was permitted to infer Appellant’s intent from the circumstantial
evidence presented by the Commonwealth. For all of the foregoing reasons,
we conclude there was sufficient evidence to support Appellant’s conviction
for harassment and Appellant’s second claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/19
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Com. v. Taylor, J.
Combined Opinion