COMMONWEALTH of Pennsylvania, Appellee, v. Michael C. LEACH, Sr., Appellant.
Superior Court of Pennsylvania.
Filed April 8, 1999.
Submitted Jan. 19, 1999.
729 A.2d 608
¶ 14 In McElroy, the appellee was charged with various crimes stemming from a high-speed police chase. In the course of the chase, the pursuing officer‘s car collided with another vehicle killing its driver. As part of an internal police investigation into the officer‘s actions during the chase, another officer, who was conducting the investigation, tape recorded certain witnesses’ statements. Prior to trial, the trial court granted the appellee‘s request for discovery of the tape-recorded interviews from the Pennsylvania State Police (“PSP“). The PSP responded that they could not comply with the request because the tapes had been destroyed after preparation of its Board of Peer Review‘s report and, therefore, it requested that the trial court reconsider its order compelling production of the tape recordings. The court denied the motion and imposed sanctions against the Commonwealth by precluding it from introducing trial testimony from any of the witnesses who had participated in the tape recorded interviews. The Commonwealth appealed on the basis that the sanctions imposed against it were improper because it had neither control nor possession of the tape recordings.2 It argued that the proper means by which to obtain the recordings in question was for the appellee to serve a subpoena duces tecum upon the Commissioner of the PSP as custodian of the records. Our court held that because the record showed the District Attorney never had the opportunity to see or hear the tapes and, therefore, could not have been said to have withheld tapes following the appellee‘s request for the same, the trial court‘s order imposing sanctions should be vacated.
¶ 15 We hold that McElroy is applicable to the present case. The Commonwealth was not in possession of the requested records. At the trial court‘s direction, Appellees sought production of the records through the proper avenue of a subpoena duces tecum filed against the custodian of the records, the City of Pittsburgh. Accordingly, because the Commonwealth was not in possession of the records, we hold the trial court erred in dismissing the charges against Appellees as a sanction against the Commonwealth for failing to comply with
¶ 16 City of Pittsburgh‘s appeal is quashed.
¶ 17 Order dismissing charges filed against Appellees reversed.
¶ 18 Case remanded for further proceedings. Jurisdiction relinquished.
Ralph A. Germak, Asst. Dist. Atty., McAlisterville, for Com., appellee.
Before HUDOCK, J., CIRILLO, President Judge Emeritus, and TAMILIA, J.
TAMILIA, J.:
¶ 1 Michael C. Leach, Sr., appeals from his June 12, 1998 judgment of sentence of two and one-half (2 1/2) 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) Order2 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 1/2) times the aggravated
Guideline 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 (13) 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 “[c]ourse of conduct by its very nature requires a showing of a repetitive pattern of behavior.” Id. at 235, 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
¶ 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. The eight prior incidents of slashing the tires and smashing the windshields each created fear and apprehension on the part of the victim in addition to having a terrorizing psychological effect. Having established the course of conduct, each act must carry with it a commensurate penalty, for the effect of treating all as a single crime would be to denigrate the total chronic and repetitive imposition of harm with its debilitating progression into perpetual fear and immobility.
¶ 11 This course of conduct can be analogized to repetitive drug sales, which are a course of conduct which frequently results in a single prosecution on the multiple charges, each sale being a count in the complaint. A conviction and sentence may be imposed as to each count as each sale constitutes a violation of the law and an attack on the well-being of society and the victimization of the purchaser. Each sale is, therefore, subject to an individual penalty.
¶ 12 Based upon the foregoing analysis, we find appellant was properly convicted of nine acts of stalking. Each time a stalker commits an act, as part of an established course of conduct, under circumstances demonstrating an intent to place the victim in fear of bodily injury or to cause the victim substantial emotional
¶ 13 In addition, appellant challenges the 2 1/2 to 5 year term of imprisonment imposed for his February 12, 1998 stalking act. Generally, sentencing is a matter within the sound discretion of the sentencing court and this Court will not disturb a sentence unless it is outside the statutory limits or manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Philipp, 709 A.2d 920 (Pa.Super.1998). Pursuant to
¶ 14 Judgment of sentence is affirmed.
¶ 15 Concurring and Dissenting Statement by HUDOCK, J.
HUDOCK, J., Concurring and Dissenting.
¶ 1 While I concur with most of the opinion of the majority, I must respectfully dissent from that portion which finds that the first act of criminal mischief constitutes stalking. As the majority notes “The elements of stalking are not established until the occurrence of a second prohibited act....” (Majority Opinion at 611-12.) I believe that the first act of vandalism, in itself not sufficient to amount to stalking, cannot rise to stalking because of subsequent events. It is either criminal when it is done or it is not. Subsequent events cannot make criminal an act which is not illegal at the time it is committed.
¶ 2 I would vacate the judgment of sentence arising from the first act of vandalism and affirm the remainder of the sentence.