Com. v. Levenberg, F.

• Court: Superior Court of Pennsylvania
• Decided: October 27, 2015
• Docket: 553 EDA 2015
• Status: Unpublished

Opinion

J-S63024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

FRANK LEVENBERG

Appellant No. 553 EDA 2015

Appeal from the Judgment of Sentence January 6, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0028366-2014 MC-51-CR-0034551-2014

BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED OCTOBER 27, 2015

Appellant, Frank Levenberg, appeals from the January 6, 2015

aggregate judgment of sentence of one-year probation, imposed after he

was found guilty of two counts of indirect criminal contempt for violation of a

Protection from Abuse (PFA) order.1 After careful review, we affirm.

We summarize the relevant factual and procedural history of this case

as follows. On May 2, 2014, a PFA order was entered against Appellant,

prohibiting him from having any contact, direct or indirect, with Leana Older,

his former girlfriend. On July 5, 2014, Older was awoken by a text message

from her sister, stating that Appellant had threatened to kill her. N.T.,

1/6/15, at 11. She then heard noises outside her front door and saw ____________________________________________ 1 23 Pa.C.S.A. § 6114(a). J-S63024-15

Appellant standing outside of her house in front of his car. Older then

observed Appellant get into his car and drive off. Id. at 12. Approximately

one minute later, Appellant returned to the house. Id. Older fled the

house, was picked up by her sister, and was driven to the police station to

report the incident. Id.

On September 10, 2014, Older and her daughter were stopped at a

red traffic light when Appellant was at a nearby McDonalds drive-thru

window. Id. at 16. Older had her windows down, and Appellant made

threatening comments towards her. Id. After the red light turned green,

Older proceeded to a nearby Wawa, approximately half a block away, but

Appellant followed her and stopped his vehicle in a bus lane in front of the

Wawa. Id. at 17. Appellant began to argue with Older and her daughter.

Id. After one to two minutes, Appellant got back into his car and drove off.

Id. at 19-20. Older then called the police and reported the incident. Id. at

19.

On January 6, 2015, Appellant proceeded to a one-day bench trial, at

the conclusion of which Appellant was found guilty of two counts of indirect

criminal contempt stemming from the incidents on July 5, 2014 and

September 10, 2014.2 The trial court immediately imposed a sentence of six

____________________________________________ 2 The trial court points out that the Commonwealth also charged Appellant with one count each of stalking and harassment, but these charges were dismissed for lack of evidence. Trial Court Opinion, 4/6/15, at 2 n.1.

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months’ probation on each charge, to run consecutively to each other.

Appellant did not file a post-sentence motion. On February 3, 2015,

Appellant filed a timely notice of appeal.3

On appeal, Appellant presents the following three issues for our

review.

A. Was the evidence insufficient to support the guilty verdicts because it was inherently contradictory and unreliable such that the guilty verdicts must be reversed as constituting a violation of due process of law?

B. Was the verdict against the greater weight of the evidence where … [A]ppellant’s proffered evidence firmly establishes his alibi for the July 5, 2014 incident, and where the September 10, 2014 incident was primarily initiated by … [A]ppellant’s … daughter, and was the result of a chance meeting in public rather than any wrongful intent on the part of … [A]ppellant?

C. Did the trial court err in imposing a sanction of criminal contempt which “should not be used when a lesser means would suffice,” Commonwealth v. Haigh, 874 A.2d 1174, 1177 (Pa. Super. 2005)[, appeal denied, 887 A.2d 1240 (Pa. 2005)], where the record does not reflect that the trial court at any point considered whether lesser means would suffice to address the alleged violation of the temporary order at issue in this matter?

Appellant’s Brief at 4.

____________________________________________ 3 Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.

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Appellant’s first issue involves his challenge to the sufficiency of the

evidence against him. We begin by noting our well-settled standard of

review. “In reviewing the sufficiency of the evidence, we consider whether

the evidence presented at trial, and all reasonable inferences drawn

therefrom, viewed in a light most favorable to the Commonwealth as the

verdict winner, support the [finder of fact] verdict beyond a reasonable

doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400

(2015). “The Commonwealth can meet its burden by wholly circumstantial

evidence and any doubt about the defendant’s guilt is to be resolved by the

fact finder unless the evidence is so weak and inconclusive that, as a matter

of law, no probability of fact can be drawn from the combined

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc) (internal quotation marks and citation omitted), appeal

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the

entire record … and all evidence actually received[.]” Id. (internal quotation

marks and citation omitted). “[T]he 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.” Id. (citation omitted). “Because

evidentiary sufficiency is a question of law, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d

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119, 126 (Pa. 2013) (citation omitted), cert. denied, Diamond v.

Pennsylvania, 135 S. Ct. 145 (2014).

Instantly, Appellant was convicted of indirect criminal contempt. “To

establish indirect criminal contempt, the Commonwealth must prove: 1) the

order was sufficiently definite, clear, and specific to the contemnor as to

leave no doubt of the conduct prohibited; 2) the contemnor had notice of the

order; 3) the act constituting the violation must have been volitional; and 4)

the contemnor must have acted with wrongful intent.” Commonwealth v.

Walsh, 36 A.3d 613, 619 (Pa. Super. 2012) (citation omitted).

Appellant argues that the evidence was insufficient for his conviction

stemming from the July 5, 2014 incident because “Appellant presented two

witnesses who firmly established his alibi[.]” Appellant’s Brief at 19.

Additionally, Appellant argues that the evidence was insufficient for his

conviction stemming from the September 10, 2014 incident because under

Haigh, the violation was not made with wrongful intent and was de minimis.

Id. at 22. We will address each argument in turn.

In this case, Older testified that she personally saw Appellant outside

of her home in the early morning hours of July 5, 2014. N.T., 1/6/15, at 12.

Older also recognized Appellant’s black 1999 Chevrolet Suburban, which she

herself had driven multiple times in the past. Id. at 13. Further, Older

testified that Appellant drove around the block once and stopped back in

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front of her house a second time, at which point she left via the back door,

got picked up by her sister, and went to the police. Id. at 13.

Our Supreme Court has held that for sufficiency purposes the

testimony of a single eyewitness is sufficient to support a conviction.

Commonwealth v. Brown, 52 A.3d 1139, 1165 (Pa. 2012);

Commonwealth v. Duncan, 373 A.2d 1051, 1054 (Pa. 1977). Although

the trial court found Appellant’s alibi witness credible, the trial court also

noted that said witness acknowledged “she wasn’t with [Appellant] the entire

evening.” N.T., 1/6/15, at 64. The trial court noted that Appellant admitted

that Older’s home is only “a couple minutes away” from the pub where

Appellant alleged he was. Id. at 65. As the factfinder, the trial court was

“free to believe all, part or none of” Appellant’s alibi witness’s testimony.

Watley, supra. Based on these considerations, we conclude the

Commonwealth did present sufficient evidence to support the indirect

criminal contempt conviction for the July 5, 2014 incident.

As to the September 10, 2014 incident, relying on this Court’s decision

in Haigh, Appellant avers that the Commonwealth failed to establish

wrongful intent. In Haigh, the appellant, while subject to a PFA order,

spoke to the victim in a courtroom into which he was brought as a prisoner

for a PFA violation hearing. Haigh, supra at 1177. We concluded that the

Commonwealth failed to show wrongful intent based on the following.

A reasonable person could have believed, and Appellant did believe, that the PFA order was relaxed

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to some extent in the courtroom context, especially where Appellant was shackled and the victim was protected by an armed deputy sheriff. Appellant did not believe that he was threatening Mrs. Haigh, and neither she nor any one else in the courtroom heard Appellant threaten her or otherwise make any threatening movements or gestures towards her. Appellant’s questions arose from his concern for the health of his wife of thirty-one years, even though they were estranged at the time. After a thorough review of the record, we conclude, based upon all of the circumstances, that Appellant did not act with wrongful intent by engaging in this conversation with his wife in the courtroom.

Id.

We conclude that this case is legally distinguishable from Haigh.

Here, Appellant found himself in the same location as Older when he had

just finished going through a McDonalds drive-thru. However, Appellant

then affirmatively followed Older to the Wawa and began to shout at Older

and her daughter. N.T., 1/6/15, at 28-29. We cannot say that Appellant’s

intentional choice was de minimis as it occurred outside a courtroom setting

and was the product of circumstances within Appellant’s control. As a result,

the Commonwealth did show sufficient evidence of wrongful intent in this

case. Walsh, supra. Therefore, Appellant is not entitled to relief on his

first issue.

Appellant’s avers in his second issue that the trial court’s verdict was

against the greater weight of the evidence. Appellant’s Brief at 25.

However, before we may address this claim, we must consider the

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Commonwealth’s argument that Appellant has waived this issue for lack of

preservation in the trial court. See generally Commonwealth’s Brief at 14.

Pennsylvania Rule of Criminal Procedure 607 discusses claims

pertaining to the weight of the evidence and provides, in relevant part, as

follows.

Rule 607. Challenges to the Weight of the Evidence

(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:

(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.

Pa.R.Crim.P. 607(A); see also Pa.R.A.P. 302(a) (stating, “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time

on appeal[]”). Our Supreme Court has explained that preserving a weight of

the evidence claim in the trial court is important because the failure to do so

“deprive[s the trial] court of an opportunity to exercise discretion on the

question of whether to grant a new trial.” Commonwealth v. Sherwood,

982 A.2d 483, 494 (Pa. 2009) (footnote omitted), cert. denied, Sherwood

v. Pennsylvania, 559 U.S. 1111 (2010).

In this case, Appellant did not file a post-sentence motion.

Additionally, we have reviewed the record and Appellant did not raise this

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issue at any time during the proceedings in the trial court. Instead,

Appellant raised this issue for the first time in his Rule 1925(b) statement.

As a result, we conclude Appellant’s weight of the evidence claim is waived

for want of preservation. See Commonwealth v. Thompson, 93 A.3d

478, 490-491 (Pa. Super. 2014) (concluding weight claim was waived when

raised for the first time in Rule 1925(b) statement even though “the trial

court reviewed the substance of his weight of the evidence claim in its Rule

1925(a) opinion[]”).

In his third issue, Appellant avers that the trial court erred when it

sentenced him to consecutive probationary terms. Specifically, Appellant

claims that the trial court did not give an adequate explanation for its

sentence, and did not consider lesser alternatives under Haigh. Appellant’s

Brief at 27. Although Appellant claims this issue does not pertain to the

discretionary aspects of his sentence, we agree with the Commonwealth that

it does. See Commonwealth v. Bullock, 948 A.2d 818, 826 (Pa. Super.

2008) (discussing claim that the trial court failed to state adequate reasons

for its sentence on the record as a claim pertaining to the discretionary

aspects of his sentence), appeal denied, 968 A.2d 1280 (Pa. 2009). It is

axiomatic that in this Commonwealth, “[t]here is no absolute right to appeal

when challenging the discretionary aspect of a sentence.” Commonwealth

v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). When an

appellant forwards an argument pertaining to the discretionary aspects of

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the sentence, this Court considers such an argument to be a petition for

permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247,

1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal denied, 104

A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this Court

determines that there is a substantial question that the sentence was not

appropriate under the sentencing code.” Commonwealth v. Cartrette, 83

A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks and

citation omitted).

Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether a petition for permission to appeal should be granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

(1) [W]hether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 [Pa.C.S.A.] § 9781(b).

In the case sub judice, we note that Appellant has failed to include a

Rule 2119(f) statement in his brief, and the Commonwealth has noted its

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objection in its brief. Commonwealth’s Brief at 18. “If a defendant fails to

include an issue in his Rule 2119(f) statement, and the Commonwealth

objects, then … this Court may not review the claim.” Commonwealth v.

Karns, 50 A.3d 158, 166 (Pa. Super. 2012), appeal denied, 65 A.3d 413

(Pa. 2013). As the Commonwealth has lodged its objection, we deny

Appellant’s petition for permission to appeal the discretionary aspects of his

sentence. See Trinidad, supra.

Based on the foregoing, we conclude all of Appellant’s issues on appeal

are either waived or devoid of merit. Accordingly, the trial court’s January 6,

2015 judgment of sentence is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/27/2015

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