Commonwealth v. Sewell

Nov 19, 1997

No. 134

Versions:702 A.2d 570

1997 Pa. Super. LEXIS 3691

BROSKY, Judge.

Lеon Sewell appeals from the judgment of sentence of the trial court following his bench trial convictions of three counts of harassment.1

On October 31, 1995, at approximately 10:30-11:00 p.m., Emily Johnson, her common-law husband Edward Downer and their son Eddie returned to their home at 915 North Lang Avenue in Pittsburgh. As they рulled the car up to their house they noticed appellant standing on the sidewalk in front of the house. Both Johnson and Downer recognized аppellant as the man who, three days earlier, stood on their lawn and threw a rock and broke a window in the house; appellant then аttempted to enter the house through the broken window. N.T., 11/25/96, at 15. Appellant was arrested regarding the earlier incident.2

*571As Johnson parked the car in front of the house, appellant turned and ran into an alley located approximately \-k blocks from the house. Johnson and Downer thеn carried their invalid son into the house and locked the door to the house. They then observed appellant and another person emerge from the alley and stare at the Johnson-Downer house. Johnson then heard several gunshots and called the police; the poliсe arrived and arrested appellant.

Appellant was charged with loitering and prowling at nighttime. Appellant proceeded to а bench trial before the Honorable David R. Cashman. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Judge Cashman acquitted appellant of loitering and prowling at nighttime, but convicted him of three counts of summary harassment.3

Appellant claims on appeal that, “Because harassment has an element not necessary fоr a conviction of loitering and prowling at nighttime, harassment is not a lesser included offense of loitering and prowling at nighttime.” Appellant’s Brief аt 9. Under the facts of the instant case, we are constrained to reverse the judgment of sentence of the trial court.

“[UJpon indictment for а particular crime, a defendant may be convicted of a lesser offense included within that crime.” Commonwealth v. Pemberth, 339 Pa.Super. 428, 429, 489 A.2d 235, 236 (1985). As long as conviction is for a lesser-inсluded offense, the defendant will have been put on notice of the charges against him and can adequately prepare a defеnse. Id. at 431-32, 489 A.2d at 237.

Our Court stated in Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915 (1994),

A lesser-included offense is a crime having elements of which are a necessary subcom-ponent of elements of another crimе, the greater offense. The elements in the lesser-included offense are all contained in the greater offense; however, the greater offense contains one or more elements not contained in the lesser-included offense. [Citations omitted.]

Id. at 318, 647 A.2d at 927.

18 Pa.C.S. § 5506 states:

Loitering and prowling at night time.

Whoever at night time [sic] mаliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor of the third degree.

Id. Our Court stated in Commonwealth v. Bulicki, 359 Pa.Super. 83, 518 A.2d 577 (1986),

To constitute the crime of loitering and prowling at nighttime there must be the concurrence of the following elements and circumstances: (1) there must be a loitering and prowling; (2) it must be done maliciously; (3) the act must occur around a dwelling house or other place used wholly or in part for dwelling or living purposes; (4) the place so used must belong or be oсcupied by another; (5) it must be done at nighttime. [Citation omitted.]

Id. at 85 n. 2, 518 A.2d at 578, n. 2. In defining the terms utilized in the instant statute, our Court stated in Commonwealth v. Belz, 295 Pa.Super. 183, 441 A.2d 410 (1982),

“ Malicious”, as used in the instant statute, means an intent to do a wrongful act or having as its purpose injury to the privacy, person, or property of another. To “loiter” is to stand around оr move slowly about; to spend time idly; to saunter; to delay; to linger; to lag behind. To “prowl” is to rove or wander over in a stealthy manner; to pace or roam furtively.

The [statute] in question is intended to punish not only those persons who at night are bent on peeping into the private affаirs of citizens in their dwellings, but also those persons who are found at or near dwellings without lawful purpose or reason and whose presence can only be explained in *572some preparation for or attempt at illegality ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or crime. [Citations omitted.]

Id. at 186, 441 A.2d at 411.

Appellant was convicted of 18 Pa.C.S. § 2709(a)(3), which states:

Harassment and stalking.

(a) Harassment. A person сommits the crime of harassment when, with intent to harass, annoy or alarm another person:

(3) he engages in a course of conduct or reрeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Id. “Course of conduсt” means “[a] pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct.” 18 Pa.C.S. § 2709(f). “[H]arassment remains a ‘course of conduct.’ A single act will not support a conviction ...” Commonwealth v. Zullinger, 450 Pa.Super. 533, 537 n. 2, 676 A.2d 687, 689, n. 2 (1996).

We reiterate that appellant was only charged with loitering and prowling at nighttime; he ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was not charged with harassment. However, he was convicted of three counts of harassment.

We find that harassment is not a lesser-included offense of loitering and prowling at nighttime; accordingly, we must reverse the judgment of sentenсe of the trial court.

An element of the crime of harassment is a course of conduct; a single act will not support a conviction. Id. The crime of loitering and prowling at nighttime only requires one act (although additional acts can be included). Hence, the elements of harаssment, the purported lesser-included offense, are not all contained in loitering and prowling at nighttime, the greater offense. This point is especially pertinent in the instant case since appellant was convicted of harassment, which requires more than one act; hence, since appellant committed only one act on October 31, 1995 (the indictment only refers to loitering and prowling on that date; it does not allege that appellant engaged in a course of conduct intended to harass the victims), the trial court necessarily had to consider the •incident, occurring three days before October 31, 1995, to convict appellant of harassment. However, when appellant wаs charged with loitering and prowling at nighttime, he was not put on notice that there would be evidence presented regarding the incident three days prior to October 31, 1995; accordingly, he could not adequately prepare a defense to the crime of harassment. Commonwealth v. Pemberth, supra. Additionally, the indiсtment only mentions Johnson’s name; it does not mention the other two persons that appellant was convicted of harassing.4 Since the crimе of harassment is not a lesser-included offense of loitering and prowling at nighttime, we find that the trial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court erred in convicting appellant of thrеe counts of harassment and we reverse the judgment of sentence of the trial court.

Judgment of sentence reversed. Jurisdiction relinquished.

Notes

. Harassment is a summary offense.

. At trial, both Johnson and Downer identified appellant as the person they observed on both occasions.

Regarding the first incident, none of the parties has informed us of the charges against aрpellant; however, the charges were nol pressed. N.T., 11/25/96, at 7-8.

. Apparently the three counts relate to Johnson, Downer and their son.

. As mentioned, supra, appellant was convicted of three counts of harassment—one count each for Johnson, Downer and their son.