Com. v. Miyares, T.

2024 Pa. Super. 166, 320 A.3d 740

• Court: Superior Court of Pennsylvania
• Decided: July 31, 2024
• Docket: 574 WDA 2023
• Status: Published

Opinion

J-A13004-24

2024 PA Super 166

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYREECE MIYARES : : Appellant : No. 574 WDA 2023

Appeal from the Judgment of Sentence Entered April 18, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008948-2022

BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.

OPINION BY OLSON, J.: FILED: July 31, 2024

Appellant, Tyreece Miyares, appeals from the judgment of sentence

entered on April 18, 2023, following his bench trial convictions for two counts

of harassment.1 We affirm.

We briefly summarize the facts and procedural history of this case as

follows. Appellant lives next door to two adult male romantic partners, the

victims in this case, in the Brighton Heights neighborhood of Pittsburgh,

Pennsylvania. On August 18, 2022, the victims installed security cameras

after one of the men was assaulted by a guest from Appellant’s residence.

On September 16, 2022, the victims went to the police to file a report that

they had been harassed. More specifically, the victims alleged that between

August 25, 2022 and September 16, 2022, on nine separate occasions,

Appellant walked toward the victims’ residence, looked directly into the video

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1 18 Pa.C.S.A. 2709(a)(4). J-A13004-24

camera and flashed his middle finger. In one instance, on August 27, 2022,

Appellant showed his middle finger and shouted the term “gay bitch” as he

looked at the security camera. On September 24, 2022, Pittsburgh police

officers filed a criminal complaint against Appellant alleging two counts of

harassment pursuant to Section 2709(a)(4). On April 18, 2023, Appellant

proceeded to a bench trial wherein the victims and Appellant testified. The

victims testified that they felt threatened, uncomfortable, and unsafe because

of Appellant’s conduct. Moreover, the Commonwealth admitted the nine

security videos at issue into evidence. By order entered on April 18, 2023,

the trial court found Appellant guilty of both counts of harassment and

sentenced Appellant to an aggregate term of six months of non-reporting

probation. This timely appeal resulted.2

On appeal, Appellant presents a sole issue for our review:

I. Whether the Commonwealth presented sufficient evidence to sustain [Appellant’s] two convictions for harassment, pursuant to 18 Pa.C.S.A. § 2709(a)(4), where it failed to prove, beyond a reasonable doubt, that his display [of his] middle finger to a camera constituted “lewd, lascivious, threatening or obscene” behavior?

Appellant’s Brief at 5.

2 Appellant filed a timely notice of appeal on May 17, 2023. On May 25, 2023, the trial court entered an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Following a court-ordered extension of time, Appellant complied timely on July 21, 2023. On August 28, 2023, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

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In sum, Appellant argues:

Neither of [Appellant’s] convictions for [h]arassment pursuant to Section 2709(a)(4) can be sustained. The Commonwealth’s evidence established that [Appellant] gave the middle finger to the complainants’ camera several times, and on one occasion he said, ‘gay bitch.’ While [Appellant’s] conduct was rude, insulting, and entirely unworthy of praise, the salient fact remains that it was not ‘lewd,’ ‘lascivious,’ ‘obscene’ or ‘threatening’ as contemplated by the statute. Consequently, his conviction must be reversed, and his judgment of sentence must be vacated.

Id. at 9. Appellant claims that his “conduct was clearly meant to be emphatic

and course” but “not descriptive of an act of sex” and, therefore, “[b]y

definition … not ‘lewd’ or ‘lascivious’ or ‘obscene.’” Id. at 17. Likewise, while

Appellant concedes that his conduct “was rude and insulting,” he argues it was

not “threatening” because “his conduct did not constitute ‘fighting words’ since

it was not ‘inherently likely to provoke a violent reaction.’” Id. at 20 (citation

omitted). Finally, Appellant maintains that the trial court erroneously relied

upon a course of conduct under a different subsection of the harassment

statute, 18 Pa.C.S.A. § 2709(a)(3), for which Appellant was not charged. Id.

at 12.

We adhere to the following standards:

In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. When performing this review, we may not reweigh the evidence or substitute our own judgment for that of the fact finder.

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“A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: ... (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures[.]” 18 Pa.C.S.A. § 2709(a)(4). An intent to harass may be inferred from the totality of the circumstances.

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (internal case

citations and some quotations omitted). Furthermore, the harassment

statute defines the term “communicates” as “convey[ing] a message without

intent of legitimate communication or address by oral, nonverbal, written or

electronic means, including telephone, electronic mail, internet, facsimile,

telex, wireless communication or similar transmission.” 18 Pa.C.S.A.

§ 2709(f).

This Court has further “recognize[d] that a harassment conviction is

arguably not predicated on the speech itself but rather the conduct

accompanying the speech.” Commonwealth v. Hanner, 303 A.3d 752, at

*4 (Pa. Super. 2023) (non-precedential decision).3 “The statute is not

directed at the content of speech and is unrelated to the suppression of free

expression. Rather, the statute focuses on the manner and means of

communication and proscribes communications made with an intent to

harass.” Id., citing Commonwealth v. Hendrickson, 724 A.2d 315, 318

(Pa. 1999). Under the harassment statute, communications are considered

threatening if they do not fall within an identified exception to the First

Amendment and constitute “fighting words” or “true threats.” See Hanner, ____________________________________________

3 This Court may cite its non-precedential memoranda filed after May 1, 2019 for persuasive value. See Pa.R.A.P. 126(b).

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303 A.3d 752, at *6. “The States are free to ban the simple use, without a

demonstration of additional justifying circumstances, of so-called ‘fighting

words,’ those personally abusive epithets which, when addressed to the

ordinary citizen, are, as a matter of common knowledge, inherently likely to

provoke violent reaction.” Id. citing Cohen v. California, 403 U.S. 15, 20

(1971) (original brackets omitted); see also Commonwealth v. Lutes, 793

A.2d 949, 962 (Pa. Super. 2002) (citation omitted) (describing “fighting

words” as “those which by their very utterance inflict injury or tend to incite

an immediate breach of the peace … are of no essential part of any exposition

of ideas, and are of such slight social value as a step to truth that any benefit

that may be derived from them is clearly outweighed by the social interest in

order and morality. Resort to epithets or personal abuse is not in any proper

sense communication of information or opinion safeguarded by the

Constitution, and its punishment as a criminal act would raise no question

under that instrument.”). “Whether language qualifies as ‘fighting words’

requires consideration of the facts.” Hanner, 303 A.3d 752, at *6 (citation

omitted). “[I]n determining whether words constitute fighting words, the

circumstances surrounding the words can be crucial, for only against the

background of surrounding events can a judgment be made whether the

words had a direct tendency to cause acts of violence by others.” Id. (citation

omitted; brackets supplied). Furthermore, “[s]peech which communicates a

serious expression of intent to commit an act of unlawful violence against a

particular individual or group of individuals — more commonly referred to as

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a ‘true threat’ — is another certain class of speech that is beyond the

protective ambit of the First Amendment. Id. at *7 (citation omitted). “The

hallmark of a ‘true threat’ is that it ‘threatens unlawful violence.’” Id. (citation

omitted).

Here, the trial court determined that Appellant’s act of “raising [his]

middle finger in this case [was] prohibited ‘nonverbal’ communication as

defined in Section 2709(f)” and there was no “legitimate purpose for his

communication.” Trial Court Opinion, 8/28/2023, at 4. In conjunction, the

trial court noted that saying “gay bitch” was commenting on the victims’

“sexual orientation and support[ed] the inference that [Appellant’s] conduct

was intended to harass.” Id. Moreover, at trial when rendering its verdict,

the trial court asked Appellant to consider “being in that space where every

time you come and go someone is … remind[ing] you that you don’t belong.”

N.T., 4/18/2023, at 50; id. at 49-50 (“Think about if your mother … was given

the finger or someone put up a confederate flag every time she came out the

door or she came home from work or every time she walked to or from her

car and gave her the finger and called her the N word”); see also id. at 51

(“[T]hese two gentlemen, minding their business, buying a home, living there,

trying to create a nice home for their family, they’re not bothering anybody,

just trying to live their lives but because you or someone else reached the

conclusion that you don’t like how they get down, you don’t like their … sexual

orientation … so you decide you are going to make it inconvenient, as

uncomfortable for them to be there as possible. You wouldn’t tolerate it. You

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wouldn’t like it if someone did it to you because of the color of your skin.”).

Hence, the trial court determined that Appellant intended to inflict injury,

incited an immediate breach of the peace, and the communications had slight

social value.

We agree with the trial court’s assessment and conclude that Appellant’s

use of the term “gay bitch” (similar to the use of a racial slur) was a personal,

abusive epithet and, therefore, fighting words likely to provoke a violent

reaction. Even Appellant admits that the communication was crude, emphatic,

and/or a course means of expressing social commentary. Additionally, in this

case, the trial court examined the totality of the circumstances and

background of surrounding events, as required, noting “nine occasions, over

no more than three-week span” as a “continued course of conduct” and

recognized that the victims installed security cameras based upon a previous,

unrelated assault. Trial Court Opinion, 8/28/2023, at 4. Indeed, the record

contains ample evidence to support the trial court’s finding that Appellant

specifically intended to harass the victims. As the court noted, this was not

an isolated incident and Appellant’s repeated conduct supported the inference

that it was not incidental and there was specific intent. Hence, we reject

Appellant’s suggestion that he was convicted under another subsection of the

harassment statute pertaining to course of conduct. Finally, the trial court

also credited the victims’ testimony that they felt threatened by Appellant’s

actions, and we may not usurp that determination. Based upon the totality of

the evidence presented, we conclude that the Commonwealth sufficiently

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supported the two harassment convictions under Section 2709(a)(4).

Accordingly, Appellant is not entitled to relief.

Judgment of sentence affirmed.

DATE: 07/31/2024

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