Com. v. Wroten, C.

2021 Pa. Super. 124, 257 A.3d 734

• Court: Superior Court of Pennsylvania
• Decided: June 17, 2021
• Docket: 3167 EDA 2018
• Status: Published

Opinion

J-A10037-21

2021 PA Super 124

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CHARLES WROTEN : No. 3167 EDA 2018

Appeal from the Order Entered October 2, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0013240-2018

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*

OPINION BY COLINS, J.: FILED JUNE 17, 2021

The Commonwealth appeals from the order entered in the Court of

Common Pleas of Philadelphia County (“trial court”) dismissing the refiled

charges of simple assault, official oppression, and harassment1 against

Appellee, Charles Wroten. We reverse the trial court’s order and remand for

trial.

This matter relates to a February 15, 2018 incident that occurred at 30th

Street Station in Philadelphia involving Appellee, an on-duty, uniformed officer

with the Amtrak Police Department, and Darrin Rogers, a train commuter at

the station. At approximately 4:15 a.m. on the date in question, Appellee

entered one of the men’s bathrooms at the station and ordered everyone

present to exit so that cleaning staff could clean the bathroom. Rogers was

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2701(a), 5301(1), and 2709(a)(1), respectively. J-A10037-21

one of the individuals in the bathroom at this time. The Commonwealth

alleges that, after escorting Rogers out of the bathroom, Appellee pushed

Rogers into a corner, punched him in the face, and then told him never to

return to the station.

At the July 26, 2018 preliminary hearing in the Philadelphia Municipal

Court, Rogers testified that he entered a bathroom stall at the station prior to

catching his 4:47 a.m. train to Jenkintown when he heard someone say that

the bathroom was closed and everyone inside had to exit. N.T., 7/26/18, at

6, 10. Rogers stated that he responded by saying that he had just sat down

and he would exit the stall in a minute. Id. When Rogers exited, he realized

that the individual who had ordered him out was a police officer, who he

identified at the preliminary hearing as Appellee. Id. at 6-7, 9. Appellee told

him again to leave the bathroom, but Rogers insisted that he needed to wash

his hands. Id. at 7. When Rogers attempted to use the sink, Appellee

grabbed him and told him he was under arrest. Id. at 7-8.

Appellee then led Rogers out of the bathroom, took him down the

hallway, and pushed him through a door. Id. at 8. At that point, according

to Rogers, Appellee “threw me against the wall and he punched me in my

mouth. And I hit my head against the wall when he did it.” Id. Rogers stated

that he had a “busted lip” and was bleeding from his mouth and his head was

hurting for the rest of the day from the impact with the wall. Id. at 10, 19.

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Rogers stated that, once Appellee told him he was under arrest, he kept

quiet and did not say anything further. Id. at 9. Following the punch, Appellee

did not place Rogers into custody but instead:

He pushed me out the door and told me to get the F out the station. I said I got to catch the train, my train to go to work. He said go fucking downtown to catch the train from now on; if I catch you in here, I’m going to lock you up.

Id. at 9-10. After he was thrown out of the station, Rogers waited to calm

down, then called his wife and asked her to come to 30th Street Station to be

with him while he filed a complaint. Id. at 10.

Surveillance video footage from cameras in the station was played at

the preliminary hearing during Rogers’ testimony. Id. at 7-8. At the

conclusion of the hearing, the municipal court dismissed all of the charges

against Appellee. Id. at 22.

On August 2, 2018, the Commonwealth filed a notice that it was refiling

the charges in the trial court. The trial court held a hearing on October 2,

2018, at which the Commonwealth presented the notes of testimony from the

preliminary hearing, as well as the surveillance video shown at the prior

hearing. In addition, the Commonwealth presented the testimony of Sergeant

McKenna of the Amtrak Police Department, who was Appellee’s supervisor at

the time of the incident. Sergeant McKenna testified in relevant part that he

had reviewed the surveillance video of the incident and he would characterize

it as “[l]evel two . . . [d]isruptive behavior” under the Amtrak Police

Department’s use-of-force guidelines. N.T., 10/2/18, at 6-7. Sergeant

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McKenna stated that in cases where an officer uses force, the officer is

required to fill out a written use-of-force form as soon as possible explaining

his or her reasoning for using the force. Id. at 7-8. Sergeant McKenna stated

that Appellee did not complete the form as he was required to do and that the

force used in this incident was not consistent with Amtrak policy. Id. at 8-9.

Following the hearing, the trial court entered an order denying the

Commonwealth’s notice to refile and dismissed the charges. In assessing the

evidence presented by the Commonwealth, the trial court found that Rogers’

testimony was at times contradictory and that the surveillance video “did not

provide the full picture [of what happened] and had no audio.” Trial Court

Opinion, 3/2/20, at 4. The court further noted that the Commonwealth did

not present evidence that Appellee “had a trait or habit of using force resulting

in complaints” or that he acted outside of his duty as a police officer. Id. The

court thus concluded that it was “unable to determine the exact events and

occurrences that led to the use of force” and therefore the Commonwealth did

not prove a prima facie case as to any of the charged crimes. Id. This timely

appeal followed.2

The Commonwealth raises the following issue for our review:

Did the lower court err in denying the Commonwealth’s motion to refile simple assault, official oppression, and harassment charges against [Appellee] based on improper deference to the municipal

2 The Commonwealth filed its statement of errors complained of on appeal on

November 16, 2018 pursuant to Pa.R.A.P. 1925(b), and the trial court entered an opinion on March 2, 2020.

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court judge’s decision and explicit weight and credibility determinations where the evidence, when viewed in the proper light and accepted as true, proved a prima facie case that [Appellee] committed these crimes.

Commonwealth’s Brief at 4.

Prior to reaching the Commonwealth’s appellate arguments, we must

first address the claim by Appellee that the certified record lacks competent

evidence that would have established a prima facie case as to the three

charges. Appellee asserts that while the transcript of the Municipal Court

preliminary hearing and the 30th Street Station surveillance video were

marked by the Commonwealth’s attorney at the refile hearing before the trial

court, neither were moved into evidence. Therefore, Appellee argues that the

notes of Rogers’ testimony and the video were not properly before the trial

court nor are they before this Court on appeal. In addition, Appellee avers

that the trial court could not consider the notes of testimony as it was hearsay

evidence and the Commonwealth did not show that Rogers was unavailable at

the refile hearing as required to admit former testimony under Rule of

Evidence 804. See Pa.R.E. 804(a), (b)(1). Relying on Commonwealth v.

McClelland, 233 A.3d 717 (Pa. 2020), Appellee argues that Rogers’ hearsay

testimony was therefore not sufficient for the Commonwealth to prove its

prima facie case.3 ____________________________________________

3 Appellee also argues that this Court may not consider the 30th Street Station

surveillance video based on the fact that it does not appear in the certified record and the Commonwealth, as the appellant here, bore the responsibility for ensuring the completeness of the record certified by the trial court. See (Footnote Continued Next Page)

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At the beginning of the refile hearing in the trial court, the following

exchange took place:

[Assistant District Attorney (“ADA”)]: . . . with the Court’s permission?

THE COURT: Yes.

[ADA]: I filed a motion, refiled this motion, sent Your Honor a copy of the notes and the video that was shown in the [Municipal Court] courtroom. I’d just ask that they be -- I know Your Honor’s seen the notes, read the notes and seen the video. So I just ask that they be marked C-1 and C-2.

THE COURT: All right. You want C-1 for the notes?

[ADA]: And C-2 for the video.

THE COURT: Okay. C-1 is going to be the notes of testimony, that’s 7/26/18. And C-2 will be the video.

[ADA]: Which is two short video clips --

THE COURT: Okay. And then we --

[ADA]: Which [defense counsel] has seen and I sent a copy.

N.T., 10/2/18, at 3-4.

Pa.R.A.P. 1921, Note. However, upon application of the Commonwealth, this Court entered an order directing the trial court to certify and transmit a supplemental record containing the video. See Pa.R.A.P. 1926(b)(1) (“If anything material to a party is omitted from the record by error, breakdown in processes of the court, or accident or is misstated therein, the omission or misstatement may be corrected . . . by the trial court or the appellate court upon application or on its own initiative at any time; in the event of correction or modification by the trial court, that court shall direct that a supplemental record be certified and transmitted if necessary[.]”). After the conclusion of briefing in this appeal, the trial court transmitted a supplemental certified record consisting of a thumb drive that contained the surveillance video footage submitted to the trial court. Therefore, the Commonwealth complied with its obligation with respect to the certified record, and the surveillance video is properly before this Court on appeal.

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When hearing argument at the refile hearing on whether the charges

against Appellee should be reinstated, the trial court directed counsel to “just

focus on what we have that supports or doesn’t support the fact that [the

charges were] discharged” in the Municipal Court. Id. at 15. The ADA and

defense counsel then each referenced Rogers’ preliminary hearing testimony

and the contents of the surveillance video in support of their respective

positions. Id. at 18-23. In its Rule 1925(a) opinion, the trial court noted

what the court deemed to be deficiencies in Rogers’ testimony and the

surveillance video and explained that it was dismissing the charges against

Appellee because “[t]he evidence [that the] Commonwealth presented at the

preliminary hearing was insufficient to meet the prima facie requirement.”

Trial Court Opinion, 3/2/20, at 4.

While the ADA did not specifically move the preliminary hearing notes

of testimony and surveillance video into evidence, we do not deem this

omission as necessitating the exclusion of this evidence from the record. It is

apparent from the trial court’s statements at the hearing that it accepted these

items into evidence and considered them to be part of the record for the

purpose of its analysis. We note that, while Appellee now claims that these

documents are dehors the record, his counsel explicitly relied upon them at

the refile hearing to argue that the Commonwealth had not met its burden of

establishing a prima facie case. Moreover, at no point during the refile hearing

did defense counsel lodge an objection to the surveillance video or notes of

testimony, state that he had not had an opportunity to review these items, or

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argue to the trial court that it could not base its decision on this evidence

because they were not part of the record. In making the determination that

these items are part of the certified record in this appeal, we are mindful of

the relaxed rules of evidence attendant to preliminary hearings and other pre-

trial criminal proceedings. See Pa.R.E. 101, Comment (“Traditionally, our

courts have not applied the law of evidence in its full rigor in proceedings such

as preliminary hearings . . .”); accord Pa.R.Crim.P. 542, Comment (relating

to preliminary hearings generally); Pa.R.Crim.P. 1003, Comment (relating to

preliminary hearings in Philadelphia Municipal Court).

Furthermore, we disagree with Appellee that Rogers’ testimony cannot

support a prima facie determination based on the fact that it was not admitted

under a hearsay exception. It is well-established that where the

Commonwealth seeks to establish a prima facie case against the accused after

charges were dismissed at the preliminary hearing, the Commonwealth may

proceed “with the same evidence presented at the first hearing or with

additional evidence.” Commonwealth v. Carbo, 822 A.2d 60, 67 (Pa. Super.

2003) (en banc), abrogated on other grounds by Commonwealth v.

Dantzler, 135 A.3d 1109, 1112 n.5 (Pa. Super. 2016) (en banc); see also

Dantzler, 135 A.3d at 1112; Commonwealth v. Claffey, 80 A.3d 780, 789

(Pa. Super. 2013). Pursuant to Rule of Criminal Procedure 542, the

Commonwealth may establish a prima facie case at a preliminary hearing

through hearsay evidence, “whether written or oral.” Pa.R.Crim.P. 542(E),

Comment; see also Pa.R.Crim.P. 1003, Comment (relating to preliminary

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hearings in Philadelphia). However, as our Supreme Court recently held in

McClelland, “hearsay alone is insufficient to establish a prima facie case at

a preliminary hearing.” 233 A.3d at 733 (emphasis added).

The parties have not cited any caselaw to this Court on the issue of

whether, if the Commonwealth chooses to use the “same evidence presented

at the first hearing,” Carbo, 822 A.2d at 67, it may simply rely on the

transcript of the first hearing or whether it must either present the same

witnesses for live testimony at the second hearing or submit the transcript

pursuant to a hearsay exception.4 Even assuming the latter to be so, however,

Appellee did not object to the inclusion of the notes of testimony in the

evidentiary record at the refile hearing and therefore there is no basis for the

exclusion of the notes from the record. See Pa.R.E. 103(a)(1) (party claiming

error in admission of evidence must object and state specific grounds for

objection); Commonwealth v. Radecki, 180 A.3d 441, 455 (Pa. Super.

2018) (failure to raise contemporaneous objection waives issue on appeal).

Furthermore, McClelland is not implicated here as the Commonwealth did

not rely “solely” on the transcript of Rogers’ testimony at the refile hearing, ____________________________________________

4 But cf. Commonwealth v. Perez, ___ A.3d ___, No. 9 EAP 2020 (Pa. filed

April 29, 2021), slip op. at 3 (noting that at the outset of the refile hearing the court of common pleas stated that “it had ‘read the notes of testimony’ from the first preliminary hearing” and then heard testimony from additional witnesses) (citation omitted); Liciaga v. Court of Common Pleas of Lehigh County, 566 A.2d 246, 247 (Pa. 1989) (court of common pleas correctly concluded that a district justice erred in finding that a prima facie case was not established based “upon [the court of common pleas’] review of the notes of testimony of the preliminary hearing”).

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but it also presented the surveillance video footage as well as the testimony

of Sergeant McKenna. 233 A.3d at 735.

Turning to the merits of this appeal, we observe that the evidentiary

sufficiency of the Commonwealth’s prima facie case for a charged crime is a

question of law as to which our standard of review is de novo and our scope

of review is plenary. Commonwealth v. Perez, ___ A.3d ___, No. 9 EAP

2020 (Pa. filed April 29, 2021), slip op. at 16-17. The preliminary hearing is

not a trial and serves the principal function of protecting the accused’s right

against an unlawful arrest and detention. Id. at 17. At a preliminary hearing,

the Commonwealth bears the burden of proving the prima facie case, which

is met when it “produces evidence of each of the material elements of the

crime charged and establishes probable cause to warrant the belief that the

accused committed the offense.” Commonwealth v. Montgomery, 234

A.3d 523, 533 (Pa. 2020) (citation omitted); see also Pa.R.Crim.P. 542(D)

(“At the preliminary hearing, the issuing authority shall determine from the

evidence presented whether there is a prima facie case that (1) an offense

has been committed and (2) the defendant has committed it.”). “The evidence

supporting a prima facie case need not establish the defendant’s guilt beyond

a reasonable doubt, but must only demonstrate that, if presented at trial and

accepted as true, the judge would be warranted in permitting the case to

proceed to a jury.” Montgomery, 234 A.3d at 533.

In reviewing the determination of whether the Commonwealth met its

burden of establishing a prima facie case for a charged crime, “the trial court

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is afforded no discretion in ascertaining whether, as a matter of law and in

light of the facts presented to it, the Commonwealth has carried its pre-trial,

prima facie burden to make out the elements of a charged crime.”

Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005). “Hence, we are

not bound by the legal determinations of the trial court.” Dantzler, 135 A.3d

at 1112. Furthermore, it is inappropriate for the trial court to make weight or

credibility determinations when assessing whether the Commonwealth

established a prima facie case. Perez, slip op. at 17.

“[I]nferences reasonably drawn from the evidence of record which

would support a verdict of guilty are to be given effect [at a preliminary

hearing], and the evidence must be read in the light most favorable to the

Commonwealth’s case.” Id. at 18 (citation omitted). “The use of inferences

is a process of reasoning by which a fact or proposition sought to be

established is deduced as the logical consequence from the existence of other

facts that have been established.” Id. (citation omitted). “The ‘more-likely-

than-not’ test, must be applied to assess the reasonableness of inferences

relied upon in establishing a prima facie case of criminal culpability.” Id.

Upon review, we first observe that the trial court did not apply the

correct standards to its review of the question of whether the Commonwealth

met its prima facie burden at the preliminary hearing stage. In finding that

Rogers’ testimony was “contradictory[] at times” and that the evidence only

amounted to a “he said she said” case, Trial Court Opinion, 3/2/20, at 4, the

trial court improperly based its determination on the weight and credibility of

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the Commonwealth’s evidence, which are not appropriate areas of analysis at

the preliminary hearing stage. Perez, slip op. at 17. Furthermore, while the

trial court faulted the Commonwealth for not showing that Appellee had a

“trait or habit” of using excessive force or that he was acting “outside of his

duty as a police officer,” Trial Court Opinion, 3/2/20, at 4, proof of these facts

were not required elements of any of the charged crimes, and therefore these

factors were irrelevant at the preliminary hearing stage. See Karetny, 880

A.2d at 513 (stating that a trial court has “no discretion” in determining

whether the Commonwealth made a prima facie showing of the elements of

the charged crimes). Finally, to the extent the trial court found the evidence

against Appellee lacking based on the absence of corroborating witnesses or

video of the entire sequence of events, the trial court did not view the evidence

“in the light most favorable to the Commonwealth and instead improperly

viewed it in the light most favorable to [A]ppellee.” Perez, slip op. at 19-20

(holding that this Court erred by overlooking evidence that the defendant

thrust his arm towards the victim moments before the victim started bleeding

profusely from the neck and instead drawing an inference in favor of the

defendant that one of the other individuals present may have stabbed the

victim).

By contrast, on our review of the evidence presented below, we conclude

that the Commonwealth established a prima facie case as to each of the three

charges against Appellee. With respect to the simple assault charge, an

individual is guilty of this offense if he “attempts to cause or intentionally,

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knowingly or recklessly causes bodily injury to another.” 18 Pa.C.S. §

2701(a)(1). “The Commonwealth need not establish the victim actually

suffered bodily injury; rather, it is sufficient to support a conviction if the

Commonwealth establishes an attempt to inflict bodily injury.”

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012). “This

intent may be shown by circumstances, which reasonably suggest that a

defendant intended to cause injury.” Id.

“Bodily injury” is defined by statute as “[i]mpairment of physical

condition or substantial pain.” 18 Pa.C.S. § 2301. Thus, injuries that are

“trivial in nature,” “noncriminal contact resulting from family stress and

rivalries,” or a “customary part of modern day living” do not satisfy this

element. Commonwealth v. Smith, 206 A.3d 551, 559 (Pa. Super. 2019)

(citations omitted). “The existence of substantial pain may be inferred from

the circumstances surrounding the use of physical force even in the absence

of a significant injury.” Commonwealth v. Ogin, 540 A.2d 549, 552 (Pa.

Super. 1988) (en banc). We have held that an individual who aggressively

grabs the arm of another and pushes her against wall causes bodily injury,

even though the victim did not require medical attention or miss work as a

result and only sustained bruises that lasted a few days. In re M.H., 758

A.2d 1249, 1252 (Pa. Super. 2000). We have likewise held that a punch to

the face that broke the victim’s glasses and caused pain for several days

caused a bodily injury. Commonwealth v. Richardson, 636 A.2d 1195,

1196 (Pa. Super. 1994). Similarly, we have found that a deliberate punch

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with a closed fist resulting in “slight swelling and pain” was a bodily injury.

Commonwealth v. Marti, 779 A.2d 1177, 1181-82 (Pa. Super. 2001).

Here, Rogers testified that, after Appellee removed him from the station

bathroom, Appellee “took me down the hallway and pushed me through the

door” and then “threw me against the wall,” in spite of the fact that Rogers

was not resisting. N.T., 7/26/18, at 8-9. According to Rogers, Appellee then

“punched me in my mouth[, a]nd I hit my head against the wall when he did

it.” Id. at 8. The punch caused Rogers to bleed from a “busted lip” and

caused pain in his head from the impact with the wall. Id. at 10, 19.5 In

addition, Sergeant McKenna of the Amtrak Police Department stated that his

review of the surveillance video showed that Appellee used “[l]evel two” force

against Rogers, which was inconsistent with Amtrak policy. N.T., 10/2/18, at

6-9.

We conclude that the Commonwealth demonstrated probable cause that

Appellee committed a simple assault. The evidence shows that Appellee

intended to cause bodily injury by pushing him into a corner and punching him

in the face. 18 Pa.C.S. § 2701(a)(1); Martuscelli, 54 A.3d at 948.

Furthermore, the Commonwealth presented prima facie evidence that

Appellee caused “bodily injury” to Rogers by causing him to bleed from his

5 We note that while the surveillance video was not required to substantiate

the charges against Appellee, we have reviewed the video and found it consistent with Rogers’ account that Appellee pushed him through a door and then into a corner, Appellee then struck Rogers in the face, and Rogers did not visibly resist Appellee.

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mouth and pain in his head. Cf. Marti, 779 A.2d at 1181; Richardson, 636

A.2d at 1196. A fact-finder could reasonably infer from Rogers’ testimony

about the pain he experienced that his injuries were not “trivial in nature” or

a “customary part of modern day living.” Smith, 206 A.3d at 559 (citations

omitted). In any event, even if Rogers were not found to have suffered bodily

injury, the Commonwealth demonstrated probable cause that Appellee

“attempt[ed] to cause . . . bodily injury to” Rogers by punching him in the

mouth. 18 Pa.C.S. § 2701(a)(1); see Richardson, 636 A.2d at 1196-97

(evidence that the appellant approached victim, yelled for him to “get out of

here,” and struck the victim in the face was sufficient to show that the

appellant specifically intended to assault the victim and therefore he

attempted to cause bodily injury under the simple assault statute).

We likewise find that the Commonwealth demonstrated a prima facie

case that Appellee committed the offense of official oppression. Under the

relevant sub-section of the statutory definition of the offense:

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits [official oppression] if, knowing that his conduct is illegal, he . . . subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights.

18 Pa.C.S. § 5301(1).

“The evil sought to be prevented by the law against official oppression

is the unlawful abuse of the power of public officials.” Commonwealth v.

Checca, 491 A.2d 1358, 1366 (Pa. Super. 1985). “The statute was broadly

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drafted to include all opportunities for oppressive use of official power” and

applies to “numerous situations wherein an official engages in wrongdoing

while acting in his official capacity,” including “aggressive action against the

individual.” Id. at 1366-67. We have held “as a general rule that a police

officer in uniform is cloaked with the authority of his office; and that actions

taken by him which constitute mistreatment of another may fairly be said,

within the terms of the statute, to be ‘taking advantage’ of that authority.”

Commonwealth v. Stumpo, 452 A.2d 809, 814 (Pa. Super. 1982) (footnote

omitted).

“Mistreatment” under the statute is given its commonly understood

meaning and “is equated with abuse.” Commonwealth v. Manlin, 411 A.2d

532, 533 (Pa. Super. 1979). The use of the word “knowing” in the statute “is

intended to include as an element of the crime that the actor be guilty of ‘bad

faith’ in order to be guilty thereof”; in other words, “the accused must have

been acting in ‘bad faith’ when he subjected the other to the proscribed

activities.” Commonwealth v. Eisemann, 453 A.2d 1045, 1048 (Pa. Super.

1982).

The preliminary hearing record reveals that Appellee, while on duty as

a uniformed Amtrak police officer, informed Rogers that he was under arrest,

forcibly moved him from the men’s bathroom into a nearby hallway, pushed

Rogers into a corner, and struck him in the face. N.T., 7/26/18, at 7-8. In

addition, Appellee told Rogers that he would be arrested if he ever returned

to 30th Street Station despite Rogers’ remonstrations that he needed to use

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the station for his regular work commute. Id. at 9-10. This evidence made

out a prima facie case that Appellee, while taking advantage of his official

authority, subjected Rogers to unlawful “mistreatment” and “aggressive

action” and threatened an unlawful arrest if Rogers returned to the station in

the future. 18 Pa.C.S. § 5301(1); Checca, 491 A.2d at 1366. In addition,

the evidence of Appellee’s unwarranted strike of Rogers and the threat of

arrest upon Rogers’ return to the station allowed for the reasonable inference

that Appellee was acting in bad faith. Cf. Stumpo, 452 A.2d at 813-14

(sufficient evidence of official oppression conviction where officer blocked

waitress from cleaning tables, yanked her bra strap, pulled her towards him

and said “[a]ll right, bitch”).

We additionally conclude that the Commonwealth showed probable

cause that Appellee committed the harassment offense. “A person commits

the crime of harassment when, with intent to harass, annoy or alarm another,

the person . . . strikes, shoves, kicks or otherwise subjects the other person

to physical contact, or attempts or threatens to do the same.” 18 Pa.C.S. §

2709(a)(1). The intent element of this offense may be inferred from the

totality of the circumstances. Commonwealth v. Cox, 72 A.3d 719, 721 (Pa.

Super. 2013). We have held that the physical contact requirement of the

harassment statute is satisfied based on such varied conduct as the defendant

picking up the victim and slamming her to the ground, see Commonwealth

v. Kirwan, 847 A.2d 61, 63-64 (Pa. Super. 2004), the defendant impeding

the victim’s path and poking him in his chest, see Commonwealth v. Lutes,

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793 A.2d 949, 961 (Pa. Super. 2002), and the defendant forcefully grabbing

an 8-year old boy by his arm and neck and leading him home. See

Commonwealth v. Blackham, 909 A.2d 315, 319-20 (Pa. Super. 2006).

The Commonwealth showed that, by “shov[ing]” Rogers into a corner

and then “strik[ing]” him in the face with his hand, Appellee’s conduct met

the physical contact element of this offense. 18 Pa.C.S. § 2709(a)(1).

Furthermore, an inference can be drawn from Appellee’s actions that it was

more likely than not that he had the “intent to harass, annoy or alarm” Rogers.

18 Pa.C.S. § 2709(a)(1); Cox, 72 A.3d at 721.

Accordingly, after our de novo review of the evidence, we conclude that

the Commonwealth met its burden of establishing a prima facie case that

Appellee committed each of the three charged offenses. Therefore, we

reverse the trial court’s October 2, 2018 order and remand for further

proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/17/2021

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