Com. v. Harmer, L.
Com. v. Harmer, L. No. 2986 EDA 2016
| Pa. Super. Ct. | Jul 14, 2017Background
- Lynn Harmer, neighbor to the Kidd family in Harleysville, was charged with two summary counts of harassment (18 Pa.C.S. § 2709(a)(3)) based on repeated verbal confrontations and property interference between Dec 2015 and Apr 2016.
- Dispute arose from a contested property line and shared driveway; incidents included yelling, removal of a rosebush from the Kidds’ flowerbed, placing metal stakes along the shared driveway, and threats while visibly holding a hammer.
- A magisterial district judge issued a verbal no-contact order after an initial incident; Harmer violated that order the next day by entering the Kidds’ property and removing the rosebush.
- The Kidds recorded multiple encounters on an iPad; the trial court viewed the videos at the de novo trial (videos were not in the certified record).
- Harmer argued her conduct was constitutionally protected activity (speech and redress to protect property) and thus exempt from prosecution under § 2709(e); she also asserted lack of requisite intent and denial of due process.
- The trial court convicted Harmer after a de novo trial, fined her $300 per count, and the Superior Court affirmed, finding sufficient evidence that her conduct was unprotected harassment.
Issues
| Issue | Plaintiff's Argument (Harmer) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether Harmer's conduct was "constitutionally protected activity" and therefore exempt from § 2709 prosecution | Harmer contends her actions were motivated by protecting/exercising property rights and free speech/redress, so § 2709(e) bars prosecution | Commonwealth argues the actions (repeated verbal assaults, property destruction, violating no-contact order) were harassing conduct serving no legitimate purpose and not protected | Court held conduct was not constitutionally protected; convictions affirmed |
| Whether evidence sufficed to prove intent to harass, annoy, or alarm and a course of conduct serving no legitimate purpose | Harmer asserts lack of requisite intent and that actions were reasonable efforts to protect property | Commonwealth points to videotaped conduct, repeated encounters, property interference, and continuation after citations/no-contact order to infer intent | Court found ample evidence to infer intent and a course of conduct; sufficiency established |
| Whether prior case law (e.g., complaints and petitions) mandates protection for repetitive grievance-seeking conduct | Harmer relies on precedents protecting complaints/petitions from criminal inference | Commonwealth distinguishes those cases (Bender, Wheaton) because Harmer’s behavior was aggressive, invasive, and beyond restrained grievance-seeking | Court distinguished precedents and limited their application; those cases did not control here |
| Procedural/due process claims (evidence exclusion, vagueness, fundamental fairness) | Harmer argued trial court refused to consider defining evidence re property and denied fundamental fairness; asserted statute vague | Commonwealth notes Harmer failed to preserve these claims in Rule 1925(b) and that evidence supported verdict | Court found those additional claims waived for appeal and did not grant relief |
Key Cases Cited
- Commonwealth v. Blackham, 909 A.2d 315 (Pa. Super. 2006) (standard for sufficiency review and factfinder credibility)
- Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002) (intent to harass may be inferred from totality of circumstances; course of conduct can be words alone)
- Commonwealth v. Duncan, 363 A.2d 803 (Pa. Super. 1976) (free speech not absolute; lewd repeated solicitations not First Amendment protected)
- Commonwealth v. Bender, 375 A.2d 354 (Pa. Super. 1977) (vacating harassment conviction where repeated complaints to authorities implicated protected petitioning activity)
- Commonwealth v. Wheaton, 598 A.2d 1017 (Pa. Super. 1991) (repeated complaints pursued for legitimate purpose can preclude harassment finding)
- Commonwealth v. Burlingame, 672 A.2d 813 (Pa. Super. 1996) (§ 2709(e) shields labor-dispute picketing from harassment prosecution)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (U.S. 1942) (First Amendment does not protect certain categories of unprotected speech)