Opinion
J-A32017-17 No. 723 MDA 2017
04-24-2018
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM JAMES COST, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 25, 2017
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-SA-0000152-2016, CP-35-SA-0000153-2016 BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, William James Cost, appeals from the Judgment of Sentence entered by the Lackawanna County Court of Common Pleas following his convictions after a bench trial of two counts of summary Harassment. After careful review, we affirm.
Briefly, Appellant lives across the street from the Giedieviells family in Dickson City in Lackawanna County. On February 28, 2016, Officer Christopher Tully of the Dickson City Police Department responded to the Giedieviells's home after Appellant had almost hit Shannon Giedieviells with his car. Officer Tully issued Appellant a warning and told the Giedieviells family to document any further incidents involving Appellant in a log.
Over the next few months, the Giedieviells family recorded "numerous incidents involving [Appellant], including using his key fob to cause his car horn to beep, sometimes up to 20 times, whenever they exited their home." Trial Court Opinion, 6/20/17, at 1-2. On May 4, 2016, Officer Tully cited Appellant for Harassment. Appellant continued to engage in this behavior, and on July 5, 2016, Officer Tully again cited Appellant for Harrassment.
Officer Tully noted "36 separate acts" in the second citation.
On September 12, 2016, a district magistrate found Appellant guilty in both cases, and Appellant filed an appeal to the Court of Common Pleas of Lackawanna County. After a trial de novo, the Honorable Vito P. Geroulo found Appellant guilty of the two summary offenses of Harassment on April 25, 2017. That same day, the trial court sentenced Appellant to 10 to 90 days' incarceration in each case to be served consecutively.
On April 28, 2017, the trial court entered a formal Order denying Appellant's summary appeal and sentencing Appellant. The trial court stayed Appellant's sentences until resolution of the instant appeal.
On April 26, 2017, Appellant filed Notices of Appeal in both cases. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents seven issues on appeal:
I. Whether horn honking is a protected activity under the 14th and 1st Amendment[s]?
II. Whether pursuant to 18 [Pa.C.S.] § 2709(e) [Appellant] could not be prosecuted for engaging in protected activities?
III. Whether there was insufficient evidence to find [Appellant] guilty of the summary offense of harassment?Appellant's Brief at 5.
IV. Whether the trial court erred by failing to allow [Appellant] the right of allocution?
V. Whether the trial court erred by not considering [Appellant's] character, age, and personal characteristics when he sentenced [Appellant] to incarceration?
VI. Whether the trial court erred in sentencing [Appellant] to incarceration since imprisonment was not necessary?
VII. Whether [Appellant] should have been given a jury trial?
As a prefatory matter, Appellant's argument section, which includes 11 distinct issues, does not correspond with the seven issues presented in his Statement of Questions Involved as required by Pa.R.A.P. 2119(a). See , e.g., Graziani v. Randolph , 856 A.2d 1212, 1216 (Pa. Super. 2004) (where appellant's argument section contained "nine discrete sections that corresponded in no clear way to the three questions presented," the Court addressed only those aspects of the argument that clearly pertained to each question as stated). We need not, and will not, consider any issue that is not contained in Appellant's "Statement of Questions Involved" or that is not fairly suggested thereby. See Pa.R.A.P. 2116(a) (stating, inter alia, "No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby"); Graziani , supra at 1216.
First Amendment
In his first two issues, Appellant avers that, because he "engaged in protected activity of horn honking[,]" 18 Pa.C.S. § 2709(e) precluded his prosecution. Appellant's Brief at 7-11. Appellant claims that he engaged in constitutionally protected activity by honking his horn to lock and unlock his vehicle and protect his property. Id. at 8. Appellant argues that "a citizen has the constitutional right to honk his horn to lock/unlock his vehicle." Id .
18 Pa.C.S. § 2709(e), one subsection of the criminal Harassment statute, provides: "This section shall not apply to constitutionally protected activity."
Aside from the Statement of Questions, Appellant does not otherwise discuss or even mention the 14th Amendment in his Brief.
In determining whether certain speech is protected by the First Amendment, which is a question of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Davidson , 938 A.2d 198, 203 (Pa. 2007).
The First Amendment generally prohibits government interference with an individual's freedom of speech. Our Supreme Court has explained that "the protections of the First Amendment do not end at the spoken and written word." Commonwealth v. Bricker , 666 A.2d 257, 260-61 (Pa. 1995) (quoting Texas v. Johnson , 491 U.S. 397, 404 (1989)).
Conduct will not be labeled speech "whenever the person engaging in the conduct intends to express an idea." Id. at 261 (citations omitted). Instead, the First Amendment only protects "conduct sufficiently imbued with the elements of communication [.]" Id. (citations omitted). The First Amendment applies fully to expression concerning "philosophical, social, artistic, economic, literary, or ethical matters." Id. (citation omitted).
As an initial matter, Appellant mischaracterizes the record and disingenuously recasts his own conduct as simply intentionally unlocking and locking his car to protect his property, which honked the horn. The record belies Appellant's benign characterization of his conduct and intent. The evidence showed much more: Appellant's honking was excessive, pervasive, and he also took other physical actions indicating his intent.
Appellant's attempt to downplay or outright contradict the facts elicited in the lower court is more akin to a challenge to the weight of the evidence. See , e.g., Commonwealth v. Melvin , 103 A.3d 1, 39 (Pa. Super. 2014) (the appellate court may not weigh the evidence and substitute its judgment for the fact-finder when examining the sufficiency of the evidence).
Given these mischaracterizations and the certified record before this Court, we conclude that Appellant's conduct does not constitute constitutionally-protected expression within the meaning of the First Amendment. Appellant's conduct did not concern philosophical, social, artistic, economic, literary, or ethical matters as described in the above cases. Rather, Appellant's conduct demonstrated an effort to harass the Giedieviells. He is not entitled to relief on this claim.
Given our resolution of this issue, we need not address Appellant's attempt to frame his issue as a broad constitutional issue of first impression, i.e., whether "a citizen has the constitutional right to honk his horn to lock/unlock his vehicle." Appellant's Brief at 8. See 1 Pa.C.S. § 1922; Commonwealth v. Veon , 150 A.3d 435, 455-56 (Pa. 2016) (acknowledging the "canon of constitutional avoidance" and explaining that courts should not decide a constitutional question unless absolutely required to do so). --------
Sufficiency of the Evidence
Appellant next avers that the evidence was insufficient to support his Harassment convictions. Appellant's Brief at 11-12. Appellant specifically challenges the elements of intent and course of conduct. As described above, we note that Appellant's framing of his conduct mischaracterizes the record and evidence presented in the lower court. Regarding his intent, Appellant claims that his horn honking was a constitutionally protected activity and had a legitimate purpose: to lock and unlock his vehicle. Regarding his course of conduct, Appellant argues that days would go by between incidents of horn honking so the conduct was not continuous every day.
We review claims regarding the sufficiency of the evidence by considering 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." Commonwealth v. Melvin , 103 A.3d 1, 39 (Pa. Super. 2014). Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. Id. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Id. at 39-40.
"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. § 2709(a)(3).
The statute defines "course of conduct" as "[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." 18 Pa.C.S. § 2709(f). "An intent to harass may be inferred from the totality of the circumstances." Commonwealth v. Cox , 72 A.3d 719, 721 (Pa. Super. 2013).
Although the term "legitimate purpose" has not been clearly defined, "the import of the phrase . . . is broadly to exclude from this subsection any conduct that directly furthers some legitimate desire or objective of the actor. This element of the residual offense should limit its application to unarguably reprehensible instances of intentional imposition on another." Commonwealth v. Wheaton , 598 A.2d 1017, 1019 (Pa. Super. 1991) (citation omitted).
The Honorable Vito P. Geroulo, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant's sufficiency claim. After a thorough review of the record, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned Opinion of the trial court, we conclude that there is no merit to Appellant's sufficiency claims on appeal. Accordingly, we affirm on the basis of the trial court's June 20, 2017 Opinion. See Trial Court Opinion, 6/20/17, at 4-7 (concluding that the evidence was sufficient to support Appellant's Harassment convictions because Appellant, inter alia, excessively honked his horn hundreds of times at all hours of the day and night while the complainants were present, including from within their driveway and even after he had been cited the first time).
Allocution
Appellant contends that his sentence must be vacated because the trial court did not permit Appellant to exercise his right of allocution. Appellant's Brief at 16-17.
The Pennsylvania Rules of Criminal Procedure require that "[a]t the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or her behalf[.]" Pa.R.Crim.P. 704(C)(1). It is the sentencing court's obligation to inform the defendant of his right to speak prior to sentencing. Commonwealth v. Thomas , 553 A.2d 918, 919 (Pa. 1989). Where the trial court fails to inform the defendant of his right, a resentencing hearing is required. Id.; see also Commonwealth v. Hague , 840 A.2d 1018, 1019 (Pa. Super. 2003) (holding that the failure to afford a defendant the right to allocution requires remand to allow for allocution prior to resentencing).
"[T]o preserve a claim of error pertaining to the right of allocution, the defendant must raise the claim before the trial court at the time of sentencing or in a post-sentence motion, or suffer waiver of the claim on appeal." Commonwealth v. Hardy , 99 A.3d 577, 579 (Pa. Super. 2014) (citing Commonwealth v. Jacobs , 900 A.2d 368, 372 (Pa. Super. 2006) (en banc)).
Here, the trial court did not inform Appellant of his allocution right in accordance with Pa.R.Crim.P. 704(C)(1), and Appellant did not address the trial court prior to sentencing. See N.T., 4/25/17, at 64-67. However, Appellant did not raise this claim before the trial court at the time of sentencing or in a post-sentence motion. Accordingly, Appellant waived this claim. Hardy , supra at 579; Jacobs , supra at 372.
Discretionary Aspects of Sentence
Appellant next challenges the discretionary aspects of his sentence. Appellant's Brief at 17-19. Appellant presents two challenges to the discretionary aspects of his sentence. First, Appellant contends that the trial court erred by not considering Appellant's character, age, and personal characteristics during sentencing. Id. at 17-18. Second, Appellant argues that the trial court erroneously sentenced him to incarceration. Id. at 19.
Challenges to the discretionary aspects of sentence are not appealable as of right. Commonwealth v. Leatherby , 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth "a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence[;]" and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id. (citation omitted).
Appellant did not preserve either issue raised in this challenge to the discretionary aspects of his sentence: he failed to raise them at sentencing, and he did not file a post-sentence motion or motion to reconsider his sentence presenting these issues to the trial court.
In addition, Appellant failed to include a Pa.R.A.P. 2119(f) Statement in his Brief addressing his challenges to the discretionary aspects of his sentence. The Commonwealth has objected to its omission. See Commonwealth's Brief at 8-9. Appellant has, thus, waived his challenge to the discretionary aspects of his sentence. Pa.R.A.P. 2119(f). See also Commonwealth v. Sanchez , 848 A.2d 977, 986 (Pa. Super. 2004) (holding that appellant waived challenge to discretionary aspects of sentence where he failed to include in his brief a Pa.R.A.P. 2119(f) Statement).
Right to Jury Trial
In his final claim, Appellant argues that he was erroneously deprived of his right to a jury trial. Appellant's Brief at 22-23.
A defendant is entitled to a jury trial where he or she "faces a charge which, alone, could lead to imprisonment beyond six months." Commonwealth v. Harriott , 919 A.2d 234, 237 (Pa. Super. 2007) (citation omitted). In contrast, a defendant is not entitled to a jury trial "if an offense bears a maximum incarceration of six months or less." Id. (citation omitted).
"Similarly, where a defendant is tried for multiple offenses which do not individually allow for imprisonment exceeding six months, there is no jury trial right on those particular offenses, even if multiple convictions could yield an aggregate incarceration above six months." Id. (citation omitted). In Commonwealth v. McMullen , 961 A.2d 842, 847 (Pa. 2008), our Supreme Court held that a defendant has no right to a jury trial simply because the petty crimes with which he is charged expose him to an aggregate sentence greater than six months.
In the instant case, the Commonwealth charged Appellant with two counts of Harassment as a summary offense, each of which carried a maximum sentence of not more than 90 days' imprisonment. See 18 Pa.C.S. § 1105 ("Sentence of imprisonment for summary offenses"). Pursuant to Harriott and McMullen , Appellant was not entitled to a jury trial. Thus, this claim merits no relief.
The parties are instructed to attach a copy of the trial court's June 20, 2017 Opinion to all future filings.
Judgment of Sentence affirmed.
Judge Ott joins this memorandum.
Judge Strassburger files a concurring memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 04/24/18
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