Background

• Andrew J. Kelly was convicted of two counts of harassment under 18 Pa.C.S.A. § 2709(a)(3) and (7) after a jury trial in Montgomery County; sentence was imposed February 22, 2017.
• Victim: Pastor Kelly Legg; prosecution relied on multiple communications from Kelly to Pastor Legg, including prior communications introduced under Pa.R.E. 404(b).
• After charges were filed (Feb 25, 2016), Kelly placed a single post-charge phone call to the church on May 28, 2016; during that call he told Pastor Legg there "would be consequences" if he was not a member.
• Kelly argued the evidence was insufficient because (a) only one direct post-charge communication occurred and (b) the communications did not show intent to harass, annoy or alarm.
• Trial court found the Commonwealth had proven a "course of conduct" and intent to harass based on the totality of communications, including pre-charge acts; Superior Court affirmed.

Issues

Key Cases Cited

• Commonwealth v. Melvin, 103 A.3d 1 (Pa. Super. 2014) (standard of review for sufficiency challenges and that circumstantial evidence can sustain conviction)
• Commonwealth v. Cox, 72 A.3d 719 (Pa. Super. 2013) (intent to harass may be inferred from totality of circumstances)
• Commonwealth v. Duda, 831 A.2d 728 (Pa. Super. 2003) (caller must know or should know the call's effect would be to harass; repeated calls can show course of conduct)
• Commonwealth v. Hart, 559 A.2d 584 (Pa. Super. 1989) (discussing knowledge of the caller in harassment-by-phone cases)
• Commonwealth v. Bender, 375 A.2d 354 (Pa. Super. 1977) (distinguishes non-harassing formal complaints from criminal harassment)
• Commonwealth v. Battaglia, 725 A.2d 192 (Pa. Super. 1999) (single act generally insufficient to support harassment conviction)
• Commonwealth v. Dillon, 925 A.2d 131 (Pa. 2007) (permissible purposes for admission of Rule 404(b) evidence)