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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTHONY B. QUINN :
:
Appellant : No. 1057 EDA 2017
Appeal from the Judgment of Sentence December 8, 2016
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-SA-0000098-2016,
CP-46-SA-0000159-2016
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 03, 2018
Appellant Anthony B. Quinn appeals pro se from the judgment of
sentence entered based upon his conviction for two counts of harassment1
following his summary appeal. Appellant argues that (1) the convictions are
void because the trial judge failed to read his sentence on the record and
inform him of his appellate rights, (2) the citations issued in connection with
this matter were defective, and (3) the prosecution failed to prove that he had
“no legitimate purpose” to his actions. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2709(a)(3).
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Appellant’s conviction arose out of a dispute with his neighbor
(Complainant). The trial court summarized the relevant facts of this matter
as follows:
[T]he neighbors’ properties abutted on the right-hand corner at
the end of a dead-end street. The [Complainant’s] property was
the last house on the right at the dead end. Continuing past it,
one would proceed straight into [Appellant’s] driveway, which
then curved off to the right to his house, recessed somewhat
diagonally to the right and rear, with a high wood fence close to
the [Complainant’s] house separating the properties almost to the
street. . . . The [Complainant] would park a car in front of her
property, at the end of the street, pointing into [Appellant’s]
property to the right of the entrance to his driveway, with her
house to the car’s right. This was roughly the spot both parties
would place trash for collection.
The [Complainant] testified that at first in 2007 when she moved
in [Appellant] would put his trash cans on the other side of the
driveway closer to the house directly across the street from hers
but a few years later he started putting them every trash night up
against her car or that of someone else at her home who might
be parked there, belligerently rebuffing her requests that he stop,
and she had complained to police many times. She said she had
had dings and damage to her cars from the cans. The
Commonwealth introduced into evidence several photographs,
some of which [Complainant] testified depicted [Appellant’s] trash
cans against her or a visitor’s car and a couple of which showed
the left front corner of her car surrounded by her and [Appellant’s]
trash cans, all of which she testified Appellant had placed against
the car.
Besides the [Complainant], two officers of the Springfield
Township Police Department testified for the Commonwealth. One
testified to an incident the night of August 7, 2013, when he
responded to the [Complainant’s] report of a disturbance at her
house, where she told him [Appellant] had taken her trash cans
and a bag of trash from where she normally put them in front of
her car parked on the street (she had no driveway) and moved
them onto her property between her house and the car where, the
officer said, the trash personnel might not be able to access or
even see them for collection. The officer was aware of a prior call
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to police by the [Complainant] two months earlier in which the
same dispute over the placement of trash had been at issue and
the police and refuse authorities had advised the parties that she
was to put her trash to the right of the driveway and [Appellant]
was to put his to the left. The officer found no legitimate reason
for [Appellant] to have moved [Complainant’s] trash onto her
private property on the far side of her vehicle from the place in
the public street where she had properly placed it for pickup, after
the prior dispute had been resolved with official directions to place
her trash there, so the officer issued [Appellant] a citation for
harassment under 18 Pa.C.S. § 2709(a)(3).
The second officer testified he responded to another complaint by
the [Complainant] on the morning of November 13, 2014, about
two of [Appellant’s] trash cans placed up against the driver’s side
of her car. The officer photographed the cans against the car, and
the Court admitted the photo into evidence without objection. The
officer summarized as follows the conversation he then had with
[Appellant] after contacting him:
I asked him if they were his trash cans. And he said yes.
And I asked him if he placed them against the vehicle. And
he said he did not, he put them on the other side of the
driveway before he went to bed. And then when I asked
him, well, how did they arrive on the . . . [C]omplainant’s
car, he stated it was magic.
At the conclusion of the Commonwealth’s case, [Appellant] moved
to dismiss the August 2013 charge brought by the first officer[,]
on grounds his testimony was inconsistent with the
[C]omplainant’s on whether he was called to the scene about trash
cans being moved or trash cans being put against the car. The
Court denied this motion, and [Appellant] proceeded to testify.
[Appellant] testified to his version of the incidents in question, and
introduced four of his own photographs of the scene. He
expressed the view that [Complainant] should not place her trash
next to his property near the driveway, as previous neighbors had
not, and that she did so and parked car at the edge of his property
to harass him. He said he moved her trash cans to make room
for his at that spot. He maintained as he had in cross-examining
the officer who had responded to the August 2013 incident that
he could not place his trash on the other side of his driveway
because that was someone else’s property and to do so would
violate township ordinances although he did not produce or cite to
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the Court any specific ordinance upon which he premised this
argument. . . . [Appellant] also claimed that [Complainant], not
he, had moved the trash cans up against her own car the night
before the November 2014 complaint[.]
Trial Ct. Op., 5/8/17, at 1-4 (citations omitted).
Based upon the foregoing facts adduced at the trial de novo, the trial
court took the matter under advisement.2 One week later, the court entered
an order finding Appellant guilty of two counts of harassment and sentencing
him to a fine of $300 for each count plus costs. According to the docket entry,
the sentence was mailed to Appellant the same day it was entered.3 However,
the order did not apprise Appellant of his appellate rights. Appellant filed a
post-trial motion on January 20, 2017. The trial court denied the motion on
February 17, 2017, in an order indicating that pursuant to Pa.R.Crim.P.
720(D), post-trial motions are not properly made following a summary appeal.
Appellant filed a notice of appeal to this Court on March 17, 2017.
Thereafter, Appellant filed a timely court-ordered statement of errors
____________________________________________
2Taking the matter under advisement was in derogation of the Pennsylvania
Rules of Criminal Procedure, which specify that in a summary appeal, “[t]he
verdict and sentence, if any, shall be announced in open court immediately
upon the conclusion of the trial.” Pa.R.Crim.P. 462(F).
3 Appellant asserts that he was not informed of his sentence immediately and
indicates in his notice of appeal that it was postmarked January 17, 2017.
See Notice of Appeal, 3/17/17.
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complained of on appeal pursuant to Pa.R.A.P. 1925(b).4 The trial court filed
a responsive opinion on May 8, 2017.
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4 Appellant’s Rule 1925(b) statement contains the following issues:
1. It was error to disregard the motions to dismiss.
2. The testimony of the police and the [C]omplainant was
contradictory and thus was not proved beyond a reasonable
doubt.
3. It was error to admit the 2016 photos, whereas there was no
testimony the photos accurately depicted the condition as existing
on any specific date.
4. The prosecution failed to eliminate all legitimate purposes in
[Appellant’s] placement of trash receptacles, including proof of
township ordinances concerning placement of trash receptacles.
5. Contrary to the testimony of the police and the findings of the
court, the township ordinances enacted by a duly elected
legislative body for the orderly conduct of township affairs are not
“irrelevant.”
6. The police testimony that township ordinances are irrelevant
demonstrate[s] the police engage in illegal and corrupt favors.
7. The evidence is that [C]omplainant illegally dumps trash on and
in front of [Appellant’s] property[,] who has the right to protect
his property.
8. The evidence is that [C]omplainant illegally dumps trash on and
in front of [Appellant’s] property[,] and the police oppression of
[Appellant] demonstrate[s] the police engage in illegal and
corrupt favors.
9. The evidence is that [C]omplainant desires to park her
automobiles front of [Appellant’s] property, [Appellant’s]
placement of his trash barrels in compliance with township
ordinances is inconvenient to [C]omplainant[,] and the police
oppression of defendant demonstrate[s] the police engage in
illegal and corrupt favors.
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Appellant raises the following issues for our review:
1. Did [the trial court’s] rules violation void the conviction?
2. Should the defective citations have been dismissed?
3. Did prosecution prove inter alia, “no legitimate purpose”?
Appellant’s Brief at 4.
Initially, we note that Appellant’s notice of appeal is facially untimely,
since the judgment of sentence was entered on December 8, 2016, and his
notice of appeal was not filed until March 17, 2017. See Pa.R.A.P. 903(a)
(indicating that notice of appeal must be filed within 30 days of the entry of
the order being appealed). Even assuming that the sentence was mailed to
Appellant on January 17, 2017, his notice of appeal is still untimely since his
post-sentence motions did not toll the time for appeal. See Pa.R.Crim.P.
720(D).
____________________________________________
10. The video evidence demonstrate[s] [Appellant] acted legally
consistent with township ordinances[,] and there is not proof
beyond a reasonable doubt trash barrels were moved by
[Appellant].
11. Failure to comply with a police directive has not been charged
and therefore there cannot be a conviction.
12. The increased penalty is retaliatory.
13. The penalty is illegal.
14. The prosecution is beyond the statute of limitations.
Appellant’s Pa.R.A.P. 1925(b) Statement, 4/7/17, at 1-3.
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However, the trial court did not notify Appellant of his appellate rights
on the record or in the order mailed to Appellant. See Commonwealth v.
Hurst, 532 A.2d 865, 867 (Pa. Super. 1987) (holding that where an appeal
was untimely but the trial judge had failed to advise defendant on the record
at the time of sentencing of his right to file an appeal and the time within
which to do so, the appeal would be decided on the merits). Therefore, we
decline to quash this appeal.
In his first issue, Appellant asserts that the trial court’s failure to impose
sentence on the record at the conclusion of the trial de novo or at a later date
violated the Pennsylvania Rules of Criminal Procedure.5 Appellant argues that
his conviction is void because “the court did not bring the parties back to
announce a sentence in open court, as seemingly [is] required under
Pa.R.Crim.P. 462(F).” Appellant’s Brief at 8.
Before reaching the merits of this claim, we note that Appellant waived
his right to contest the trial court taking the matter under advisement and
rendering a sentence in writing by failing to object at the trial de novo when
the trial court indicated it would do so. See Commonwealth v. Gotto, 452
A.2d 803, 805 (Pa. Super. 1982) (holding that where defendant “failed to
object to the court taking the summary charge under advisement[, t]he issue
[was] waived”). Moreover, Appellant has failed to preserve this issue in his
____________________________________________
5 Appellant also argues that the trial court failed to advise him of his appellate
rights. Because we are considering the merits of Appellant’s appeal despite
its untimely filing, Appellant is receiving the relief he is due on that issue.
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Rule 1925(b) statement. See Commonwealth v. Barnhart, 933 A.2d 1061,
1066 n.10 (Pa. Super. 2007) (citation omitted) (indicating that an appellant’s
failure to include an issue in a Pa.R.A.P. 1925(b) statement results in waiver
of the issue). Accordingly, we find this issue to be waived.
Next, Appellant asserts that the citations served on him were defective.
By way of background to this claim, the first citation issued to Appellant
described the charged offense of harassment as follows: “[Appellant] engaged
in a course of conduct or repeatedly commits acts which serve no legitimate
purpose. [Appellant] repeatedly moved the victim’s trash (cans).” Non-Traffic
Citation, 8/8/13. The second citation indicated that the “[o]ffender routinely
puts his trash cans against victim’s car for no [legitimate] purpose or reason.”
Non-Traffic Citation, 11/19/14.
The record reflects that Appellant raised two motions to dismiss: (1) a
pretrial motion to dismiss alleging that the citations in this matter were
defective based upon lack of specificity, filed prior to the trial de novo, on
August 4, 2016, and (2) a motion at the close of the Commonwealth’s
evidence seeking to dismiss one of the citations based upon sufficiency of the
evidence, which the court considered and denied, N.T., 12/1/16, at 79. No
reference was made to the pretrial motion during the trial de novo other than
Appellant stating “I had filed two motions” after the close of testimony. N.T.,
12/1/16, at 95. The court did not address this comment and did not rule upon
the pretrial motion to dismiss.
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However, in response to Appellant’s Rule 1925(b) statement, the trial
court opined that its “disregard” of Appellant’s pretrial motion was
“understandable and proper” as the pretrial motion to dismiss lacked merit.
Trial Ct. Op. at 9. Specifically, the court noted that Appellant failed to
demonstrate any prejudice from the alleged defects in the citations. Id.
Appellant presently claims that his pretrial motion to dismiss the
citations for lack of specificity should have been granted. 6 Appellant argues
that:
Neither citation was sufficient to apprise [Appellant] of the charge
he was required to defend against. Specifically, in as much as
[Appellant] is in compliance with township ordinance as to
placement of his trash in front of his own property, the citations
fail to apprise [Appellant] of the lack of legitimate purpose
[Appellant] is alleged to have committed.
Appellant’s Brief at 16.
Pennsylvania Rule of Criminal Procedure 109 provides:
A defendant shall not be discharged nor shall a case be dismissed
because of a defect in the form or content of a complaint, citation,
summons, or warrant, or a defect in the procedures of these rules,
unless the defendant raises the defect before the conclusion of the
trial in a summary case or before the conclusion of the preliminary
hearing in a court case, and the defect is prejudicial to the rights
of the defendant.
____________________________________________
6 We note that this issue was not specifically preserved in Appellant’s Rule
1925(b) statement. However, because Appellant filed a pretrial motion to
dismiss which raised this issue, we find that it is fairly comprised in his issue
asserting that “[i]t was error to disregard the motions to dismiss.” Appellant’s
Rule 1925(b) Statement, 4/7/17, at 1. Moreover, the trial court was able to
discern the basis for Appellant’s issue. Accordingly, we address the merits of
this issue.
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Pa.R.Crim.P. 109. Pennsylvania Rule of Criminal Procedure 403(A) provides:
(A) Every citation shall contain:
(1) the name and address of the organization, and badge
number, if any, of the law enforcement officer;
(2) the name and address of the defendant;
(3) a notation if the defendant is under 18 years of age and
whether the parents or guardians have been notified of the
charge(s);
(4) the date and time when the offense is alleged to have
been committed, provided however, if the day of the week
is an essential element of the offense charged, such day
must be specifically set forth;
(5) the place where the offense is alleged to have been
committed;
(6) a citation of the specific section and subsection of the
statute or ordinance allegedly violated, together with a
summary of the facts sufficient to advise the defendant of
the nature of the offense charged;
(7) the date of issuance;
(8) a notation if criminal laboratory services are requested
in the case;
(9) a verification by the law enforcement officer that the
facts set forth in the citation are true and correct to the
officer’s personal knowledge, or information and belief, and
that any false statements therein are made subject to the
penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
Pa.R.Crim.P. 403(A). Additionally, we note that “[t]he purpose of a
preliminary written charge . . . is to inform the defendant as to the offense
with which he is charged . . . . The offense may be described by employing
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generic terms[.]” Commonwealth v. Wilkinson, 420 A.2d 647, 651 (Pa.
Super. 1980) (citation omitted).
Instantly, the citations complied with each of the requirements of Rule
403(A). Furthermore, as noted by the trial court, Appellant has failed to
demonstrate how the citations were prejudicial, merely arguing that they
lacked specificity. See Appellant’s Brief at 18. Appellant goes into no further
detail, and, accordingly, we find that Appellant was not prejudiced where the
citations informed Appellant of the offense with which he was charged by citing
to a specific statute Appellant had violated and including the factual basis for
the violation. See Wilkinson, 420 A.2d at 651; see also Pa.R.Crim.P. 109,
403(A). Thus, any error the trial court committed by not considering
Appellant’s pretrial motion to dismiss based upon defective citations is
harmless.
Finally, Appellant challenges the sufficiency and weight of the evidence.
Appellant asserts that the Commonwealth failed to prove that he had “no
legitimate purpose” in his actions regarding putting out his trash. Appellant
argues that he could not place his trash anywhere other than the front of his
property without violating a township ordinance. Appellant’s Brief at 23. In
so arguing, Appellant indicates that the Commonwealth “failed to prove that
compliance with township ordinances has no legitimate purpose.” Id. at 18.
Appellant also argues that the police told him to put his trash in front of
an apartment building across the street. In this regard, Appellant asserts that
“[t]he [C]omplainant and the police testimony concentrated on the police
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instruction for [Appellant] to place his trash across the street in front of the
apartments.” Id. at 24.
Our standard of review for sufficiency claims 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 [trier] 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. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (citation
omitted).
To sustain a conviction for harassment, the Commonwealth must prove
that a person has intent to harass, annoy or alarm another, and “engages in
a course of conduct or repeatedly commits acts which serve no legitimate
purpose.” 18 Pa.C.S. § 2709(a)(3). Here, Appellant does not dispute that the
Commonwealth proved intent to harass, annoy or alarm another or that he
engaged in a course of conduct. Rather, Appellant merely asserts that the
evidence was insufficient to prove that he had “no legitimate purpose” in
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placing his trash where he did, because he contends he was following a local
ordinance. Significantly, Appellant cites no case law in support of his
argument, nor did he ever admit or attempt to admit any such ordinance into
evidence during the trial de novo.
In any event, the record reveals that Appellant had ample space on the
other side of his driveway to place his trash cans, and thus Appellant had no
legitimate purpose to specifically place his trash cans on and surrounding the
[C]omplainant’s car. See N.T. 12-13, 22. Moreover, Appellant had previously
placed his trash on the other side of his driveway. Id. at 20. Thus, Appellant
was in no way forced to place his trash cans in the particular area he chose to
place them where the effect was to harass Complainant. Therefore, the trial
court properly considered Appellant’s actions in blocking Complainant’s car
with his trash cans and placing the trash cans directly up against her vehicle
as serving no legitimate purpose.
Appellant’s claim that the testimony of Complainant and the police
concentrated on the police instructing him to place his trash across the street
goes to the weight of the evidence.
Our standard of reviewing a weight of the evidence claim is well settled.
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, 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. On appeal, our purview
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is extremely limited and is confined to whether the trial court
abused its discretion in finding that the . . . verdict did not shock
one’s conscience. Thus, appellate review of a weight claim
consists of a review of the trial court’s exercise of discretion, not
a review of the underlying question of whether the verdict is
against the weight of the evidence. An appellate court may not
reverse a verdict unless it is so contrary to the evidence as to
shock one’s sense of justice.
Commonwealth v. Diaz, 152 A.3d 1040, 1046 (Pa. Super. 2016) (citations
omitted).7 Such a claim “concedes that the evidence is sufficient to sustain
the verdict, but seeks a new trial on the ground that the evidence was so one-
sided or so weighted in favor of acquittal that a guilty verdict shocks one’s
sense of justice.” Id. (citation omitted).
Following our review, we agree with the trial court that the verdict in
this case was supported by the weight of the evidence. Thus, the trial court
did not abuse its discretion in entering a guilty verdict. Id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/18
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7 A defendant in a summary appeal matter is not permitted to file post-
sentence motions. See Pa.R.Crim.P. 720(D). Thus, this issue has been
preserved by its inclusion in Appellant’s Rule 1925(b) statement. See
Commonwealth v. Dougherty, 679 A.2d 779, 784 (Pa. Super. 1996)
(indicating that a weight claim is preserved in the summary appeal context
where it is raised in a Rule 1925(b) statement).
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Com. v. Quinn, A.
Combined Opinion