J-A01019-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TERRENCE R. YOAST
Appellant No. 3877 EDA 2017
Appeal from the Judgment of Sentence imposed September 27, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0002236-2017; CP-46-CR-0002233-
2017; CP-46-CR-0002231-2017
BEFORE: OTT, STABILE, AND MCLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 29, 2019
Appellant, Terrence R. Yoast, appeals pro se from the judgment of
sentence the Court of Common Pleas of Montgomery County imposed on
September 27, 2017. On appeal, Appellant argues the evidence was
insufficient to support his convictions. We disagree. Accordingly, we affirm
the judgment of sentence.
The trial court, sitting as the fact-finder, summarized the facts and
procedural history as follows:
Officer Fischer testified that on December 15, 2016 he received a
harassment call for 402 Beech Street in Pottstown, Montgomery
County. Ms. Aphrodite Hussain had called police for harassment,
advised police of the interactions she had with [Appellant], and
showed police text messages between herself and [Appellant].
Officer Fischer then called [Appellant] to find out his side of the
story. He advised [Appellant] that Ms. Hussain was offended,
and that it would be best if [Appellant] communicated through
Ms. Hussain’s attorney rather than direct contact for any civil
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issues they had pending. Officer Fischer advised [Appellant] that
he should stop contacting Ms. Hussain, but [Appellant] said this
was not a police issue and he would not stop contacting her as
she was his tenant. Officer Fischer advised [Appellant] to
resolve their civil issues with the district justice and that the
harassment was a police issue [that] needed to cease. An hour
later, police were contacted again, and Ms. Hussain advised that
[Appellant] had continued with his harassing text messages.
Police issued a citation[,] which was mailed to [Appellant], but
later withdrawn due to other pending cases.
From December 11-15, 2016, there were over 40 pages of text
messages between [Appellant] and Ms. Hussain. Some of the
text messages sent by [Appellant] said “Feel free to supplement
your body with additional layers of clothing and realize you are
not in the Bermuda Triangle where you can walk around in a
bikini and still feel warm.” [Appellant] also, in response to Ms.
Hussain’s text that her daughter had wet the bed and she
needed access to a washer to wash the sheets urgently, texted
“You peed the bed?” and after being told that was not the
case[,] [Appellant] replied “you propped (sic?) it and then
blamed it on [your daughter]. That is so weak.”
Officer Schmalbach was called to 402 Beech Street on December
23, 2016 by Ms. Hussain complaining of harassing text messages
from [Appellant]. Officer Schmalbach contacted Officer Fischer
to determine that this was not an isolated incident, but an
ongoing course of conduct. After speaking to Officer Fischer,
Officer Schmalbach issued a summons for harassment. Some of
the text messages at issue included [Appellant] telling Ms.
Hussain that “You don’t want to scald [your daughter] with hot
water anyway. I think you are being very improvident as a
mother.”
Then on February 26, 2017, Corporal O’Neill arrived for another
complaint at 402 Beech Street. Ms. Hussain told police that
[Appellant] had been at the property for an excessive amount of
time and she did not feel comfortable with him being on the
property. Ms. Hussain was upset and said [Appellant] had called
her a “bitch” and other words. [Appellant] claimed to be
installing a washer, so police told him to leave after installing it
and believed that the situation was resolved.
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However, police received another harassment complaint, and
Officer Portock was called to the 402 Beech Street property on
March 2, 2017. Police were notified by multiple callers that a
person was kicking a vehicle and taking photographs. He
encountered [Appellant] in his car driving away from the
address, and [Appellant] said he had been taking photographs.
Ms. Hallinger lived across the street from Ms. Hussain and on
March 2, 2017 heard yelling outside. She looked out the window
and saw [Appellant] walking down the street with the phone in
his hand, and then return and kick Ms. Hussain’s car. Ms.
Hussain went onto her porch and there were words exchanged
between [Appellant] and Ms. Hussain or yelling in general.
Finally, Ms. Hussain testified about [Appellant] threatening her
and how [Appellant] told her the prior tenant had lost his Section
8 housing and that if Ms. Hussain kept “F’ing with him, [she
would] be next. He seen plenty of losers like me get kicked off
the program for running their mouth.” Ms. Hussain testified that
on December 15, 2016 she returned home and things were not
in their place at her home, and she felt [Appellant] had been in
her property without her consent. On December 23, 2016, she
called police again, after the text messages regarding the
Bermuda triangle, her daughter wetting the bed, and being an
improvident mother. Ms. Hussain also testified that on February
26, 2016, [Appellant] came to the apartment without notice
around 2 or 3 P.M. and then Ms. Hussain called police around
7:30 P.M. She testified that [Appellant] wandered around the
yard for 5 hours with a rake for a very small area of land. Ms.
Hussain asked when [Appellant] was going to leave the property
and [Appellant] said “F you. He would say the B word. You are
a low life. Go back to your F’ing country. Shut the F up.” Ms.
Hussain was afraid because [Appellant] had a key to her
apartment as the landlord and “he has mentioned that people
from the neighborhood are going to – may possibly be
threatening me some time soon.” Finally, on March 2, 2017, the
police were called by Ms. Hussain who saw [Appellant] recording
himself and he was kicking and yelling, going through trash
cans, and kicking the trash cans and Ms. Hussain’s car.
[Appellant] testified in his own defense. Unsurprisingly, his
testimony was contradictory to the Commonwealth’s evidence.
[Appellant] denies that he kicked the car or had a verbal
confrontation with Ms. Hussain on March 2, 2017. Following the
[b]ench trial, [the trial c]ourt found [A]ppellant Not Guilty on
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Docket 2236-2017, guilty of summary harassment on Docket
2233-2017, and guilty of summary harassment on Docket 2231-
2017. [The trial c]ourt sentenced [Appellant] to time served to
60 days on each docket running concurrent. [Appellant] filed a
pro se post-sentence motion while still represented by counsel.
[The trial c]ourt conducted a Grazier hearing, and on the
request of [Appellant], allowed him to proceed pro se.[1]
[Appellant] then filed a timely post-sentence motion[,] which
[the trial c]ourt denied. Subsequently, [Appellant] filed a timely
Notice of Appeal.
Trial Court Opinion, 1/17/18, at 1-4 (citations to the record omitted).
Appellant challenges the sufficiency of the evidence supporting his two
convictions of summary harassment under Section 2709(a)(3) of the Crimes
Code, which reads: “A person commits the crime 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.A. § 2709(a)(3).
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the Commonwealth as
verdict winner, were sufficient to prove every element of the offense beyond
a reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa.
2013). “[T]he facts and circumstances established by the Commonwealth
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1 In an order entered December 1, 2017, the trial court noted that
“[f]ollowing a Grazier hearing on October 23, 2017, [Appellant] was found
to have knowingly, voluntarily, and intelligently waived his right to counsel
on appeal.” Trial Court Order to Clarify the Record, 12/1/17, at 1.
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need not preclude every possibility of innocence.” Commonwealth v.
Colon-Plaza, 136 A.3d 521, 525–26 (Pa. Super. 2016). It is within the
province of the fact-finder to determine the weight to be accorded to each
witness’s testimony and to believe all, part, or none of the evidence.
Commonwealth v. Tejada, 107 A.3d 788, 792–93 (Pa. Super. 2015). The
Commonwealth may sustain its burden of proving every element of the
crime by means of wholly circumstantial evidence. Commonwealth v.
Crosley, 180 A.3d 761, 767 (Pa. Super. 2018). As an appellate court, we
may not reweigh the evidence and substitute our judgment for that of the
fact-finder. Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa. Super.
2015).
Appellant’s brief spans more than 70 pages, rambling essentially
about every single piece of evidence the Commonwealth put on the record
against him. The statement of questions involved on appeal, which includes
seven issues for our review, spans more than six pages. The only way to
make sense of so much verbosity is to rely on Appellant’s own summary of
the argument.2 Appellant’s main argument is that electronic
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2 Indeed, as also recognized by Appellant, “this complexity of nonsense
consisting of 247-page Bench Trial Transcript and 475-page Reproduced
Record, can be reduced to a fundamentally simple summary of argument,”
Appellant’s Brief at 29, i.e., electronic communications (texts) do not qualify
as an act under Section 103 of Crimes Code.
It does not help that the Commonwealth failed to file its brief, despite being
granted twice an extension to do so. Pursuant to our second order, the
(Footnote Continued Next Page)
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communications (texts) do not constitute an “act” as defined in Section 103
of the Crimes Code,3 or otherwise qualify as “course of conduct.”4 For the
reasons stated below, we conclude the issue is waived.
Appellant raised eleven issues before the trial court. See Trial Court
Opinion, 1/17/18, at 5-7. In his Rule 1925(b) statement, Appellant
challenged the trial court’s findings as to the relevancy or the
characterization of the “improvident” statement (first five issues), the
“horrible mother” statement (sixth issue), and the kicking of victim’s car
bumper (last five issues). Yet, there is no mention anywhere of the issue
Appellant raises in his brief to this Court–-as noted, before this Court
(Footnote Continued) _______________________
Commonwealth’s brief had to be filed on or before October 4, 2018. As of
the date of this writing, there is no brief or explanation why a brief has not
been filed as ordered.
3“‘Act’. A bodily movement whether voluntary or involuntary.” 18 Pa.C.S.A.
§ 103.
4 Section 2709(f) defines “course of conduct” as follows:
“Course of conduct.” A pattern of actions composed of more than
one act over a period of time, however short, evidencing a
continuity of conduct. The term includes lewd, lascivious,
threatening or obscene words, language, drawings, caricatures
or actions, either in person or anonymously. Acts indicating a
course of conduct which occur in more than one jurisdiction may
be used by any other jurisdiction in which an act occurred as
evidence of a continuing pattern of conduct or a course of
conduct.
18 Pa.C.S.A. § 2709(f).
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Appellant is arguing that electronic communications do not constitute an
“act” or otherwise qualify as “course of conduct.” Thus, the issue raised in
his appellate brief is raised for the first time on appeal. As such, the issue is
waived. See Pa.R.A.P. 302(a).5
In his summary of the argument, Appellant also argues that
“Appellant’s verbal in-person utterance of de minim[i]s profanity . . . on
February 26, 2017 that she was a ‘bitch’, was responsive to perceived
harassment and outside the scope of ‘lewd, lascivious, threatening or
obscene words.” Additionally, Appellant argues that the “solitary” act of
kicking the victim’s car does not qualify as a “course of conduct” or a
repeated act. Appellant’s Brief at 30-31.
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5 Even if not waived for failure to raise it in his Rule 1925(b) statement,
Appellant is not entitled to relief. Appellant emphasizes that electronic
communications are not an “act” for purposes of Section 2709(a)(3) because
they do not involve a bodily movement. Appellant focuses on the method of
delivery of the harassing message as opposed to the underlying acts or
course of conduct giving rise to the instant conviction. The relevant acts or
course of conduct here is the repeated texting, i.e., typing messages, to
victim for no legitimate purposes. Additionally, as noted, Appellant’s
relevant conduct for purposes of establishing a violation of Section
2709(a)(3) was not limited to the texting, but included in-person offensive
language and physical actions (yelling, digging through garbage, and kicking
victims’ car).
Additionally, Appellant argues that Section 2709(a)(3) is different from
similar subsections of the same harassment statute, i.e., Sections
2709(a)(4)-(a)(7), which specifically include electronic communications.
Even if true, Appellant provided no authority, nor could we find any, to
support Appellant’s allegation that the elements of the crime under Section
2709(a)(3) cannot be met by texting.
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These two issues were adequately addressed in the trial court opinion,
which we adopt as ours. Trial Court Opinion, 1/17/18, at 8-13. In essence,
[w]hen evaluating the totality of the evidence regarding
[Appellant]’s interactions with Ms. Hussain, there are numerous
conversations where [Appellant] is making statements that have
no relation to the landlord/tenant relationship. [Appellant]’s
comments about Ms. Hussain not living in the Bermuda
[T]riangle, being the person who wet the bed rather than her
daughter and being “weak” for “blaming” the situation on her
daughter, in addition to the comment about not wanting to scald
her daughter and being an improvident mother combined to
create prior incidents which served no legitimate purpose and
were intended to harass Ms. Hussain, or at least annoy her. Ms.
Hussain told [Appellant] she found those comments offensive,
and [Appellant] was on notice that making those kind of
comments was at least annoying to Ms. Hussain. [Appellant]
threatened Ms. Hussain by saying that if she kept “F’ing with
him, [she would] be next. He seen plenty losers like me get
kicked off the program for running their mouth.” [Appellant]
would also say “F you. He would say the B word. You are a low
life. Go back to your F’ing country. Shut the F up.”
[Appellant]’s intent after that could be only to annoy, alarm, or
harass Ms. Hussain. This course of conduct continued until it
culminated on February 26, 2017 with [Appellant] calling Ms.
Hussain a “bitch.” None of these comments or insults served a
legitimate purpose. [Appellant] was more than capable of
having civil, professional, landlord/tenant conversations as
evidenced by other text messages. His repeated comments and
insults served no legitimate purpose and were intended to
harass and annoy Ms. Hussain.
Trial Court Opinion, 1/17/18, at 8-9 (citations to record omitted).
Specifically, with regard to the use of the B word on February 26,
2017, the trial court found that “[w]hile [Appellant] may believe his
communication was responsive, [the trial court] found that it was not
responsive to anything, and that [Appellant] engaged in activity without
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legitimate purpose with the intent to harass, annoy, or alarm Ms. Hussain.”
Id. at 12.
With regard to the kicking of victim’s vehicle, which Appellant
characterizes as an isolated event, the trial court noted:
[Appellant]’s actions on March 2, 2017, where he went through
the garbage, was yelling outside the apartment, and was filming
the property culminating in [Appellant] going to Ms. Hussain’s
car and kicking the bumper did not serve a legitimate purpose
and consisted of more than one act. Thus, [Appellant]’s actions
on March 2, 2017 formed a course of conduct on their own and
this was not an isolated incident.
Id. at 11-12.
For the reasons stated above, we conclude Appellant waived his claim
before this Court because he failed to raise it below, and, to the extent any
other issues are properly before this Court, we conclude that the trial court
properly addressed said issues. Accordingly, we affirm the trial court’s
September 27, 2017 judgment of sentence. We further direct that a copy of
the trial court’s January 17, 2018 opinion be attached to any future filings in
this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/19
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