Opinion
J-S40039-18 No. 2231 EDA 2017
08-06-2018
COMMONWEALTH OF PENNSYLVANIA v. DONALD GRAVATT, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 30, 2017
In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008237-2015 BEFORE: LAZARUS, J., DUBOW, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Donald Gravatt, Jr., appeals from the judgment of sentence, entered in the Court of Common Pleas of Montgomery County, following his bench trial where he was found guilty of terroristic threats, harassment, and stalking. Gravatt was sentenced to time-served to 23 months' imprisonment, plus three years' probation for the terroristic threats conviction, one year of probation for the harassment conviction, and a concurrent probationary term of three years for stalking. After careful review, we affirm in part, vacate in part, and remand.
18 Pa.C.A. § 2709.1.
This case involves a long-standing feud among neighbors. The underlying facts, which recount various volatile arguments among Gravatt and his neighbors over eleven years, are succinctly set forth in the trial court's opinion and do not bear repeating. See Trial Court Opinion, 9/14/17, at 1-4. Quite frankly, this is a classic case of "he-said/she-said" that boils down to credibility determinations made by the fact finder at trial. Instantly, the trial court discredited Gravatt's trial testimony, thus resulting in a guilty verdict on all charges.
Gravatt filed timely post-sentence motions that were denied by the trial court. He filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. Gravatt raises the following issues for our review:
(1) Did the trial court err in allowing the Commonwealth to introduce a defense witness' 20-year-old crimen falsi conviction?
(2) Is the evidence insufficient to sustain the verdict of guilt because the Commonwealth failed to prove beyond reasonable doubt that [Gravatt] made a threat or that any remarks he made were spoken with the specific intent required by 18 Pa.C.S. § 2706?
(3) Is the evidence insufficient to sustain the verdict of guilt because the Commonwealth failed to prove beyond a reasonable doubt that [Gravatt] engaged in any of the behaviors proscribed by 18 Pa.C.S. § 2709 or that he engaged in conduct with the intent to harass, annoy, or alarm the complainant?
(4) Is the evidence insufficient to sustain the verdict of guilt because the Commonwealth failed to prove beyond a reasonable doubt that [Gravatt] engaged in any of the behaviors proscribed by 18 Pa.C.S. § 2709.1 or that he
engaged in conduct with the intent to place another person in reasonable fear of bodily injury or to cause substantial emotional distress?Appellant's Brief, at 6-7.
(5) Is the verdict against the weight of the evidence because all of the witnesses provided biased, self-serving testimony and there was no reason to believe one witness any more than another?
(6) Did the sentencing court fail to put specific reasons on the record supporting the imposition of an aggravated consecutive sentence?
(7) Did the sentencing court err in imposing sentences for both stalking and harassment because harassment is a lesser included offense of stalking and thus the sentences merged?
Although Gravatt raises a Pa.R.Crim.P. 600 motion issue in his Rule 1925(b) concise statement, he has abandoned that issue in his appellate brief. Thus, we decline to address it.
After a careful review of the briefs on appeal, the certified record, and relevant case law, we conclude that the trial court correctly disposes of Gravatt's first five issue raised on appeal. Thus, we rely upon the trial court's Rule 1925(a) opinion to dispose of those issues. See Trial Court Opinion, 9/14/17, at 5-16.
We instruct the parties to attach a copy of the trial court opinion in the event of further proceedings in the matter.
Gravatt next claims that the court abused its discretion in imposing an aggravated consecutive sentence without placing specific reasons on the record to support such a sentence. We find this claim waived.
Gravatt's claim goes to the discretionary aspects of his sentence. Pennsylvania Rule of Appellate Procedure 2119(f) explicitly requires that:
An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.Pa.R.A.P. 2119(f) (emphasis added). Gravatt has failed to include a separate statement in his brief pursuant to Rule 2119(f). The Commonwealth has objected to its omission. See Commonwealth v. Anderson , 830 A.2d 1013 (Pa. Super. 2003). Thus, we are precluded from reaching the merits of the claim. Commonwealth v. Hudson , 820 A.2d 720 (Pa. Super. 2003).
Finally, Gravatt claims that his sentence is illegal because the crime of harassment merges with the crime of stalking for sentencing purposes.
A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Commonwealth v. Quintua , 56 A.3d 399, 400 (Pa. Super. 2012) (citation omitted). Our Judicial Code states that
[n]o crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.42 Pa.C.S. § 9765 (emphasis added). With regard to the crimes of harassment and stalking, this Court has determined that "one can harass without stalking, but one cannot stalk without also harassing. Stalking is simply a more serious form of harassment." Commonwealth v. Reese , 725 A.2d 190, 192 (Pa. Super. 1999). Thus, harassment is a constituent offense of stalking. Id.
Here, Gravatt's sentence includes probation for both his stalking and harassment convictions; his stalking sentence was ordered to run concurrent to his terroristic threats' sentence, while his harassment sentence was ordered to run consecutive to his terroristic threats' sentence of incarceration. Moreover, his harassment charge is based upon the same criminal act as his stalking charge. Therefore, his harassment conviction merges into the correlated stalking conviction. Thus, we must remand to the trial court so that it can sentence Gravatt based upon the stalking conviction only. See 42 Pa.C.S. § 9765.
We decline to accept the trial court's suggestion that "the sentence for [s]talking can be vacated without upsetting the overall sentencing structure." Trial Court Opinion, 9/14/17, at 22. While Gravatt's probationary sentence for stalking was ordered to run concurrent to his terroristic threats' sentence, it does not change the fact that harassment is the lesser-included offense, and, thus, it is that crime that merges into the stalking crime and should be vacated. Moreover, because the court only sentenced Gravatt to one year of probation for harassment versus three years of probation for stalking, we cannot conclude that merger would not upset the sentencing scheme. Commonwealth v. Williams , 871 A.2d 254 (Pa. Super. 2005) (if appellate court's disposition upsets overall sentencing scheme of trial court, it must remand so that court can restructure sentence plan).
Judgment of sentence for terroristic threats affirmed. Judgments of sentence for stalking and harassment vacated. Case remanded for resentencing consistent with the dictates of this decision. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/6/18
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