Com. v. Wainman Jr., T.

• Court: Superior Court of Pennsylvania
• Decided: September 26, 2023
• Docket: 1418 MDA 2022
• Status: Unpublished

Opinion

J-S24043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS FRANCIS WAINMAN, JR. : : Appellant : No. 1418 MDA 2022

Appeal from the Judgment of Sentence Entered May 2, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000640-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS FRANCIS WAINMAN, JR. : : Appellant : No. 1428 MDA 2022

Appeal from the Judgment of Sentence Entered May 2, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004839-2020

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 26, 2023

Appellant, Thomas Francis Wainman, Jr., appeals from the judgment of

sentence entered in the Court of Common Pleas of Lancaster County after a

jury convicted him on one count of stalking1 at docket number CP-36-4839-

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 2709.1(a)(1). J-S24043-23

2020 and one count each of stalking2 and defiant trespass3 at docket number

CP-36-640-2021 for a course of conduct directed at his next-door neighbors.

Sentenced to consecutively-run, aggravate range sentences, Appellant

challenges the sufficiency of the evidence and the discretionary aspects of his

sentence. After careful review, we affirm based on the trial court’s

comprehensive opinion denying Appellant’s post-sentence motions.

The underlying facts of the present case begin with Appellant’s actions

occurring from the months of May through September of 2020, when he

persisted in behavior against his next-door neighbors that led to a series of

charges filed against him. Specifically, a May 14, 2020, incident led police to

charge him with summary harassment on May 19, 2020, a charge on which

he was found guilty on July 31, 2020. Trial Court Opinion, 9/6/2022, at 1.

The September 21, 2020, charge of stalking under docket 4839-2020

was based on an escalation in Appellant’s fixation with the neighbors

manifesting with his “walking the property line between the two homes at

night with a flash light; removing a wooden [survey] stake from the [family’s]

property without consent; throwing a brown substance over the back corner

of the [family’s] yard without consent, killing the grass; placing chairs on the

property line and staring directly into the windows and backyard of the

[family’s] home; and shining bright lights and pointing security cameras into

the [family’s] home.” TCO at 2. Particularly disturbing was an eyewitness ____________________________________________

2 18 Pa.C.S.A. § 2709.1(a)(1). 3 18 Pa.C.S.A. § 3503(b)(1).

-2- J-S24043-23

account of Appellant repeatedly swinging a sledgehammer into the ground

while yelling that he hated one of the family members and, on another

occasion, testimony that he followed the family’s daughters in his car while

flashing his high beams at them. N.T. (trial), Vol III, 2/11/22, at 535-550.

Such accounts generated police and court orders directing Appellant to avoid

any contact with the neighboring family or their property.

Appellant ignored these orders and admonitions on December 12, 2021,

when he entered the neighboring family’s property and made multiple trips

onto the front porch, ostensibly to deliver packages in the scope of his

employment with UPS. N.T. (trial), Vol II, at 263. The family watched from

their security cameras as Appellant drove off before circling back, parking the

vehicle near the family’s driveway, staring at the family’s front door with his

window down. The daughter who opened the door to retrieve the packages

testified that Appellant and she made eye contact multiple times before she

finished the task. Only then, she testified, did Appellant “speed away.” N.T.

at 268, 552. For this conduct, Appellant was charged with stalking and defiant

trespass at docket 640-2021.

On February 14, 2022, following a four-day consolidated trial, a jury

found Appellant guilty on two counts of stalking and one count of defiant

trespass. On May 2, 2022, the trial court, proceeding with the benefit of a

pre-sentence investigation report, imposed two aggravated range guideline

sentences of five and on-half to 11 months’ incarceration, and ordered that

-3- J-S24043-23

they run consecutively, for an aggregate sentence of 11 to 22 months’

incarceration.

On May 12, 2022, Appellant filed a timely post-sentence motion positing

that the verdict was against the weight or, in the alternative, the sufficiency

of the evidence, and that the court abused its sentencing discretion in

imposing manifestly excessive, aggravated range sentences. By order of

September 6, 2022, the trial court denied Appellant’s post-sentence motion.

This timely appeal follows.

Appellant raises the following two issues for this Court’s consideration:

I. Was the evidence presented by the Commonwealth insufficient to prove beyond a reasonable doubt that [Appellant] was guilty of Count 1, Stalking, pursuant to 18 Pa.C.S.A. § 2709.1 on docket 640-2021 where there was insufficient evidence that [Appellant] acted with the intent to place the victims in reasonable fear of bodily injury or cause substantial emotional distress?

II. Did the trial court abuse its discretion by imposing sentences on both dockets at the top of the aggravated ranges of the sentencing guidelines without acknowledging it was doing so or providing sufficient justification for doing so and further abused its discretion by imposing said sentences consecutively resulting in a sentence that was so manifestly excessive to constitute too severe a punishment and was not consistent with the protection of the public, the gravity of the offenses and the rehabilitative needs of Mr. Wainman?

Brief for Appellant, at 6-7.

After reviewing the parties’ briefs, the relevant case law, and the record

on appeal, we rely on the cogent and comprehensive September 6, 2022,

opinion authored by the Honorable David L. Ashworth, President Judge of the

-4- J-S24043-23

Court of Common Pleas of Lancaster County, to affirm Appellant’s judgment

of sentence. See Post-Sentence Motions Opinion, 9/6/22, at 3-14 (finding

verdict supported by sufficient evidence), 16-21 (imposing consecutively-run

sentences in the aggravated guideline range did not reflect an abuse of

discretion where the trial court explained its reasons for doing so on the

record, which included, inter alia: Appellant’s “utter fail[ure]” to acknowledge

his guilt or indicate he acted inappropriately; his persistent blaming of

everyone else but himself; his disturbing conduct in stalking his neighbors

after the harassment conviction; his filing of complaints against his neighbors

with the Attorney General’s Office, who quickly cleared the neighbors of any

wrongdoing; writing post-trial letters to the court and the district attorney

seeking re-litigation and including private information about his neighbors,

deemed inappropriate “deep digging” by the Commonwealth and the trial

court; and maintaining an obsessive attitude toward his neighbors that

justified the present sentence as an attempt to mitigate the possibility of

immediate retaliation against the family; and Appellant was not entitled to a

volume discount for his separate criminal acts).

We instruct the parties to attach a copy of President Judge Ashworth’s

decision in the event of further proceedings in the matter.

Judgment of sentence affirmed.

-5- J-S24043-23

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/26/2023

-6-