Commonwealth v. Leach

729 A.2d 608, 1999 Pa. Super. 72, 1999 Pa. Super. LEXIS 352
CourtSuperior Court of Pennsylvania
DecidedApril 8, 1999
StatusPublished
Cited by23 cases

This text of 729 A.2d 608 (Commonwealth v. Leach) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Leach, 729 A.2d 608, 1999 Pa. Super. 72, 1999 Pa. Super. LEXIS 352 (Pa. Ct. App. 1999).

Opinions

TAMILIA, J.:

¶ 1 Michael C. Leach, Sr., appeals from his June 12, 1998 judgment of sentence of two and one-half (2]é) to five (5) years’ imprisonment followed by an eight (8) year term of probation. Following a May 1998 jury trial, appellant was found guilty of nine counts of stalking.1 In addition, the court found appellant guilty of contempt for violation of a Protection From Abuse (PFA) Order 2 and nine counts of criminal mischief.3

¶ 2 On September 9, 1997, a PFA Order was entered prohibiting appellant “from physically abusing, menacing, harassing or stalking the [victim]”. Within a five-month period of time, and while the PFA Order was in effect, appellant vandalized the victim’s vehicle on nine separate occasions, flattening 13 tires and smashing 3 windshields. The first of the incidents occurred on September 15, 1997, only six days after issuance of the PFA Order.

¶ 3 Appellant raises the following challenges to his judgment of sentence.

A. Whether the sentence for a single count of Stalking imposed upon the [appellant] in the instant case should be vacated because said sentence was improper, unreasonable and illegally excessive, said impropriety being attributable to the sentencing court’s total disregard of the applicable Sentencing Guidelines, resulting in a sentence thirty (30) times the standard Guideline range and seven and one-half (7]é) times the aggravated [611]*611Guideline range, given the totality of factors underlying the case at bar? The lower court, in its Memorandum, while conceding the harshness of the sentence, justified its sentence by general references that the [appellant’s] conduct was reprehensible and absolutely unacceptable.
B. Whether eight of nine Stalking convictions entered against the [appellant] should be vacated where the nine Stalking counts arise out of a single sequence of nine incidents directed toward a common goal, since only one “course of conduct” transpired rather than nine? The lower court, in its Memorandum, incorrectly asserts that the point is moot because the [appellant] was only sentenced on one Stalking count. (In point of fact, in addition to the major sentence on one count, the [appellant] received eight (8) consecutive one-year probationary sentences on the Stalking convictions here disputed, said sentences effectively increasing his maximum sentence from five (5) years to thirteen (18) years.)

(Appellant’s Brief, at 3.)

¶4 We begin by examining appellant’s challenge to eight of his nine stalking convictions based upon the argument all nine incidents amount to only one stalking offense. In pertinent part, section 2709 provides:

§ 2709. Harassment and stalking
(b) Stalking. — A person commits the crime of stalking when he engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either of the following:
' (1) an intent to place the person in reasonable fear of bodily injury; or (2) an intent to cause substantial emotional distress to the person.

(Emphasis added.)

¶ 5 In Commonwealth v. Urrutia, 439 Pa.Super. 227, 653 A.2d 706 (1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995), this Court explained that “[cjourse of conduct by its very nature requires a showing of a repetitive pattern of behavior.” Id. 653 A.2d at 710. “The stalking statute is quite clear that engaging in repetitive conduct aimed at an individual evidencing an ‘intent’ to evoke ‘substantial emotional distress’ is prohibited conduct.” Commonwealth v. Schierscher, 447 Pa.Super. 61, 668 A.2d 164, 172 (1995), appeal denied, 547 Pa. 715, 688 A.2d 171 (1997) (italics in original). Appellant argues his nine incidents of criminal mischief constitute repetitive acts in support of a single stalking conviction, not nine stalking convictions.

¶ 6 This Court had a recent opportunity to analyze the elements of stalking in Commonwealth v. Reese, 725 A.2d 190 (Pa.Super.1999). In determining that section 2709(a), Harassment, is a lesser-included offense of section 2709(b), Stalking, a panel of this Court opined the same conduct which amounts to harassment, “if committed repeatedly with the intent to place the victim in fear of bodily injury or cause substantial emotional distress would rise to the level of stalking.” Id. at 191.

¶ 7 Course of conduct is established by proof of two related but separate events. For purposes of the stalking statute, course of conduct is a “pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct.” Section 2709(f), Definitions.

¶ 8 The elements of stalking are not established until the occurrence of a second prohibited act and any additional [612]*612acts extend the course of conduct. These additional acts, in conjunction with the 'prior acts, also create a new “course of conduct” and are, by definition, stalkings. In Commonwealth v. Roefaro, 456 Pa.Super. 588, 691 A.2d 472 (1997), the appellant was convicted of three counts each of harassment and stalking. Roefaro had sent two letters to the victim and, on a third occasion, left various items on the porch of a family member of the victim. The number of stalkings for which Roefaro was convicted is equal to the number of stalking acts he committed. While the validity of multiple stalking convictions was not at issue in Roefaro, supra, it may be inferred that the absence of discussion on this matter is due to the fact there is no error with respect to multiple convictions. In Roefaro, supra, the prosecution presented evidence of prior incidents of stalking of the victim by the defendant, for which the defendant previously had been convicted, in establishing course of conduct. So, too, in the present ease, we look to the individual stalking acts of the appellant against the victim to establish course of conduct.

¶ 9 In the present case, we find stalking, as defined by the legislature, occurs with each act involved in an established course of conduct, and forms the basis for an independent charge. Each stalking, including the first, is a certifiable count, capable of sustaining a separate conviction and sentence. Each act, constituting the course of conduct leading to arrest and trial, is not merely cumulative evidence of stalking but a stalking in and of itself.4 In the present case, the sentencing court imposed the term of incarceration with respect to the ninth and final incident of stalking, count 1 of the information, while imposing a sentence of probation on each of the preceding eight acts.

¶ 10 Videotape obtained from a surveillance camera indisputably established appellant’s behavior on February 12, 1998 as he vandalized the victim’s vehicle, i.e. slashed the tires and smashed the windshield.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Cole, B.
Superior Court of Pennsylvania, 2026
Com. v. Cruz, A., II
2025 Pa. Super. 264 (Superior Court of Pennsylvania, 2025)
Whipkey, S. v. Woyton, N.
Superior Court of Pennsylvania, 2025
Stanslaw, C. v. Barkman, K.
Superior Court of Pennsylvania, 2024
Com. v. Coniker, M.
2023 Pa. Super. 25 (Superior Court of Pennsylvania, 2023)
Com. v. Glover, M.
Superior Court of Pennsylvania, 2019
Com. v. Weyandt, C.
Superior Court of Pennsylvania, 2019
Com. v. Boden, D.
Superior Court of Pennsylvania, 2018
Com. v. Staton, F.
Superior Court of Pennsylvania, 2016
Com. v. Suarez, H.
Superior Court of Pennsylvania, 2016
Com. v. Brinsky, D.
Superior Court of Pennsylvania, 2016
In the Interest of: J.R., Appeal of J.R.
Superior Court of Pennsylvania, 2016
Com. v. Luchsinger, K.
Superior Court of Pennsylvania, 2016
Com. v. Ziemba, C.
Superior Court of Pennsylvania, 2016
Com. v. Burik, S.
Superior Court of Pennsylvania, 2015
Com. v. Blum, C.
Superior Court of Pennsylvania, 2014
Com. v. Ferriera, P.
Superior Court of Pennsylvania, 2014
Commonwealth v. Kelly
102 A.3d 1025 (Superior Court of Pennsylvania, 2014)
Commonwealth v. Ostrosky
909 A.2d 1224 (Supreme Court of Pennsylvania, 2006)
Commonwealth v. D'Collanfield
805 A.2d 1244 (Superior Court of Pennsylvania, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
729 A.2d 608, 1999 Pa. Super. 72, 1999 Pa. Super. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-leach-pasuperct-1999.