J-S12025-23
2023 PA Super 209
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KATHRYN DANA PAPP :
:
Appellant : No. 1394 MDA 2022
Appeal from the Judgment of Sentence Entered May 3, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004780-2020
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
OPINION BY McCAFFERY, J.: FILED OCTOBER 20, 2023
Kathryn Dana Papp (Appellant) appeals from the judgment of sentence
of a $100 fine imposed in the Dauphin County Court of Common Pleas
following her jury conviction of one count of harassment – communicates
repeatedly.1 On appeal, she argues: (1) the harassment statute is violative
of the free speech protections in both the United States and Pennsylvania
Constitutions on its face and as-applied; (2) the trial court erred in failing to
instruct the jury regarding constitutionally protected activity under both the
United States and Pennsylvania Constitutions; and (3) the evidence was
insufficient to support her conviction. For the reasons below, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2709(a)(7).
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I. FACTS & PROCEDURAL HISTORY
The facts underlying Appellant’s conviction, as developed during the jury
trial, are as follows:
On August 4, 2020, Mark Hoover (hereinafter “Victim”) and
his wife took their 4-year-old dog, Flash, to Noah’s Ark Veterinary
Center (“Noah’s Ark”) for an annual check-up and vaccinations.
Appellant was the veterinarian on duty that day at Noah’s Ark.
When Victim and his wife went to pick up Flash from Noah’s Ark,
Appellant stated that she believed Flash suffered from diabetes
insipidus, and she recommended a medication called
Desmopressin. Heeding Appellant’s recommendation, Victim gave
Flash a dose of the medication that had been prescribed. By the
next evening, Flash had suffered two seizures, which prompted
Victim to take Flash to an emergency veterinarian center called
Shores. After the visit to Shores, Victim stopped administering
the Desmopressin to Flash, and according to Victim, Flash had no
subsequent seizures. Despite Victim’s requests, however, the
veterinarian at Shores did not provide an opinion on whether
Appellant had erred by prescribing the Desmopressin.
On the afternoon of August 5, 2020, the same day that Flash
suffered his two seizures, Victim took his other dog, 13-year-old
Nick, to Noah’s Ark for a check-up and vaccinations as he had
done with Flash the previous day. Per COVID protocol that was in
effect at the time, when Victim went to pick up Nick, Victim
remained in his vehicle and called into the office to tell the staff
that he was there to pick up Nick. When Victim called in, an
administrative assistant answered the phone and quoted him the
cost for the visit. When Victim questioned the cost, the assistant
explained that various services had been performed on Nick,
including x-rays and bloodwork. Victim began to dispute the
charges for these services, explaining that he had only authorized
vaccinations and an annual check-up. At that point, the assistant
transferred the call to Appellant, who was again the veterinarian
on duty.
According to Victim, when he questioned Appellant about
the charges, Appellant began “berating” Victim, cursing at him,
and accusing him of being abusive to his animals. Wanting to end
the phone conversation, Victim told Appellant to just bring Nick
out to his vehicle. When Victim got out of his vehicle to retrieve
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Nick, Appellant continued to yell at him, accusing him of being an
abusive pet owner and proclaiming that she was going to report
Victim for animal abuse. Eventually, Victim placed Nick in his SUV,
Appellant threw some papers into the back of Victim’s vehicle, and
Appellant backed away from Victim’s vehicle as Victim was closing
the tailgate. Victim asked Appellant to send him a bill for the
charges that he had approved, and he left Noah’s Ark. Victim
recalled that Appellant seemed upset and made a comment about
how she would “have to eat the bill.”
Later [during] the evening of August 5, 2020, after the
argument between Appellant and Victim at Noah’s Ark, Victim
received a text message from Appellant which contained a video
of his dog Flash. The video focused on Flash’s eyes, as his vision
had been adversely affected by his diabetes insipidus condition.
Accompanying the video was a one-word message which read:
“Abuse.”
Later the same evening, Victim received a friend request
from Appellant on Facebook. Victim did not accept Appellant’s
friend request, but throughout the course of the evening, from
approximately 5:30 p.m. to 11:41 p.m., Appellant sent Victim a
multitude of messages via Facebook Messenger.
The first Facebook message, sent by Appellant at 5:33 p.m.,
stated: “You have only ever brought Nick to Noah’s Vet Center
two times ever and declined all diagnostics and only wanted
vaccines. I will be reporting you for mistreatment of your pets.”
Victim responded to the Appellant’s message as follows: “At this
point you should end all contact with me other than for payment
for wellness visit and shots we approved.”
Despite Victim’s request that Appellant end all contact,
Appellant continued to send Victim various Facebook messages
throughout the evening. Appellant’s second message, which was
sent about an hour after the first, read: “Actually you can block
me anytime you like, but I sent him my email. We are reporting
you and you can contact my attorney.” [Victim testified that he
is not tech savvy and would have required his son’s assistance to
block Appellant on Facebook.]
A third Facebook message from Appellant stated: “Too bad
your pet wasn’t well enough to receive the shots you approved.”
Appellant’s fourth Facebook message, which was lengthier, read
as follows:
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Talk about unethical. I have never met two people who care
less for the wellbeing of their pets.
Pretty fucked up that your four-year-old dog walked around
blind for four years with his pupils completely dilated like
some crack addict and you guys happen to not notice or
care[.]
That you declined every single year testing for heartworm
and the three tick diseases[.]
That you were trying to give a vaccine which affects the
immune system to a dog with an ALP[2] over 2000 and
possibly kill him.
And don’t worry about putting me up on Facebook because
I'm already gonna put you all there complete with all the
information [seeing as you] didn’t pay for it and I get to own
it[.3]
After Appellant’s fourth Facebook message, which was sent
at approximately 7:00 p.m., [Victim] sent a response at 7:45, in
which he said: “As stated before, please stop contacting me.”
Appellant replied by stating: “It is a free world. You can block
people easily on Facebook. Ouch, this must hurt.” Appellant then
sent Victim various pictures of Victim’s financial information that
Appellant had retrieved on the internet. Moreover, Appellant sent
Victim a screenshot of information she had retrieved regarding
Victim’s wife, including her name and date of birth as well as
information about a traffic violation that Victim’s wife incurred in
2013.
At about 9:54 p.m., Appellant messaged Victim on Facebook
again, this time giving Victim the name of Appellant’s lawyer and
telling Victim to contact the lawyer if he had any issues. Shortly
thereafter, Appellant sent another brief Facebook message,
____________________________________________
2 “ALP” is not explained or defined in the briefs or the record.
3 We have corrected the trial court’s recitation of the messages to reflect the
structure of the message as set forth in the exhibit presented at trial. See
N.T. Jury Trial, 5/2-3/2022, at 38-40; Commonwealth’s Exhibit 3.
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stating: “I do not have time for low lifes with broke moral
compasses.”
Somewhere around that time, Victim contacted the Lower
Paxton Township Police Department. Victim spoke with Officer
Derek Day and conveyed that he believed he was being harassed
by Appellant. After speaking with Victim, Officer Day contacted
Appellant and left a message that he wished to speak with her.
Appellant returned the call and spoke with Officer Day. According
to the Officer, Appellant stated that she should have stopped
communicating with Victim after he requested she stop, and she
admitted that her “mouth can get her in trouble sometimes.”
Appellant also indicated to the Officer that she wanted to report
Victim to the Humane Society for abuse, and the Officer informed
her that she could report Victim to the police if she wanted to.
There was no evidence presented, however, to indicate that
Appellant reported Victim to either the Humane Society or the
police.
Shortly before midnight, after Victim and Appellant had both
spoken with Officer Day, Victim responded to Appellant’s most
recent Facebook message, telling Appellant: “I have contacted
the police. You are harassing me. Please stop.” Shortly
thereafter, at around 11:41 p.m., Appellant replied by stating:
“We've chatted. I told them everything.” That message was the
last message exchanged between Appellant and Victim.
Trial Ct. Op., 11/30/22, at 2-6 (record citations omitted & some paragraph
breaks added).
However, there were two other communications introduced and
discussed at trial ─ a post on Appellant’s personal Facebook page, and an
email sent from Appellant to Victim and his wife. Victim testified that after
receiving the message from Appellant stating she was “going to put [him] up
on Facebook[,]” he looked at her personal profile and saw a post dated the
day before, August 4th. See N.T., Jury Trial, at 53-54, 68. The post included
pictures of various animals, including the video of Flash that Appellant had
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texted to Victim, with a caption that read: “Yet another crazy one. So grateful
for wonderful pet owners” with a heart emoji. See id. at 53; Defendant’s
Exhibit 1. Although this was posted before his interaction with Appellant,
Victim interpreted this as a negative comment about him. See N.T., Jury
Trial, at 54.
Moreover, while Appellant was sending Victim a barrage of messages on
Facebook on August 5th, she also sent him and his wife the following email at
6:20 p.m.:
Subject: Re: Flash differentials
You both are being reported for lack of proper veterinary care for
your pets. We have seen Nick only 2 times EVER and you declined
ALL diagnostics and requested ONLY vaccines. He is close to 14
[years old] and that is 2 total visits. You are inhumane. You have
a BLIND 4 [year old] dog you couldn[’]t even realize was blind nor
treat!! I have the rads, bloodwork, pictures, videos and more to
support this. If you would like to sue, for absolutely anything at
all, please contact my father and personal attorney, Allen N[.]
Papp, directly at his law firm – Adams, Cassese & Papp.
Best regards to both of you uncaring assholes,
Kathryn Papp, DVM
N.T., Jury Trial, at 44-45; Commonwealth’s Exhibit 8.
Appellant was subsequently charged with one count of harassment –
communicates repeatedly, a misdemeanor of the third degree. On September
23, 2021, she filed an omnibus pretrial motion seeking dismissal of the charge
on two bases: (1) the facts were insufficient to sustain a conviction of
harassment; and (2) the charge violated both the First Amendment of the
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United States Constitution4 and Article 1, Section 7 of the Pennsylvania
Constitution.5 See Appellant’s Omnibus Pre-trial Motion, 9/23/21, at 4-6. The
Commonwealth filed a response, and the trial court subsequently denied the
motion.6
The case proceeded to a two-day jury trial conducted on May 2 and 3,
2022. Victim and Officer Day testified on behalf of the Commonwealth.
Appellant testified in her own defense.
[She] claimed that she had sent all the messages because she
believed the dogs had serious medical conditions, and she was
frustrated that Victim and his wife would not listen to her and had
accused her of being a bad veterinarian. She testified that she
was “so worked up that [she] used improper language”, that she
was “haughty” and “overreacted”, and she conceded that she
“should have taken a step back and more calmly explained why
[Victim and his wife] should have been more concerned.”
____________________________________________
4 See U.S. Const. amend. I (“Congress shall make no law . . . abridging the
freedom of speech, or of the press”).
5 See Pa. Const. art. 1, § 7 (“The free communication of thoughts and opinions
is one of the invaluable rights of man, and every citizen may freely speak,
write and print on any subject, being responsible for the abuse of that
liberty.”)
6 No order denying Appellant’s pretrial motion appears in the certified record
or on trial court docket. However, following the Commonwealth’s case-inchief at trial, Appellant moved for a judgment of acquittal based on the same
arguments she made in her pretrial motion, and, in particular, the fact that
she was being prosecuted only for her speech, not for her conduct. See N.T.,
Jury Trial, at 85-86. At that time, the trial court stated that the pretrial motion
had been denied by another judge. See id. at 86. Appellant agreed, noting
that the pretrial judge “said it would be more appropriate” to address after
the Commonwealth presented its case. Id. Thereafter, the trial court denied
the motion for judgment of acquittal. See id. at 87.
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Trial Ct. Op. at 6 (record citations omitted). At the conclusion of trial, the jury
found Appellant guilty of harassment – communicates repeatedly. Appellant
agreed to proceed immediately to sentencing, at which time the trial court
imposed a $100 fine.
Appellant filed a timely post-sentence motion. First, she asserted that
her conviction violated the First Amendment of the United States Constitution
as-applied to the facts and circumstances of her case.7 See Appellant’s Post-
Sentence Motion and Memorandum of Law, 5/13/22, at 2-4. She argued: (1)
she was “convicted solely on the contents of her speech, not by virtue of any
physical conduct[;]” and (2) restrictions on free speech are subject to strict
scrutiny and have been upheld only when the victim is unable to avoid the
speech, so that it becomes an “abusive trespass on one’s privacy.” Id.
(citations omitted). Appellant insisted that the evidence proved Victim could
have avoided the messages by blocking her on Facebook. Id. at 3. Second,
in a related claim, she asserted that the jury should have been instructed to
consider the following: (1) that the harassment statute does not apply to
constitutionally protected activity, and a person may not be convicted for
speech that is simply offensive or disagreeable; and (2) whether Victim had
the “reasonable ability” to avoid the communication. Id. at 6.
____________________________________________
7 Notably, Appellant’s argument focused only on a violation of the United
States Constitution, and not the Pennsylvania Constitution.
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The trial court denied Appellant’s post-sentence motion on September
6, 2022. This timely appeal follows.8
II. ISSUES ON APPEAL
Appellant presents the following claims for our review:
I. Did the [trial court] err by denying [Appellant’s] Post-Sentence Motion for judgment of acquittal, or vacatur of
judgment of sentence, as violating the First Amendment of
the U.S. Constitution on its face or as applied to the facts
and circumstances of the case?
II. Did the [trial court] err by denying [Appellant’s] Post-Sentence Motion for a new trial due to refusal to instruct the
jury on constitutionally protected activity under the First
Amendment of the U.S. Constitution and under Article I,
Section 7 of the Pennsylvania Constitution?
III. Is [the] evidence insufficient as a matter of law for
[Appellant’s] conviction for harassment under 18 Pa.C.S. §
2709(a)(7)?
Appellant’s Brief at 2-3.
III. CONSTITUTIONALITY OF SECTION 2709(a)(7)
In her first issue, Appellant insists that Subsection (a)(7) of the
harassment statute violates both the First Amendment of the United States
Constitution and Article I, Section 7 of the Pennsylvania Constitution on its
face and as-applied to the facts of her case. See 18 Pa.C.S. § 2709(a)(7).
____________________________________________
8 On October 17, 2022, Appellant complied with the court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
court then filed a responsive opinion on November 30th.
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A challenge to the constitutionality of a criminal statute presents us with
“a pure question of law for which our standard of review is de novo, and our
scope of review is plenary.” Commonwealth v. Collins, 286 A.3d 767, 775
(Pa. Super. 2022). Our review is guided by the following:
[A] statute is presumed to be constitutional and will only be
invalidated as unconstitutional if it clearly, palpably, and plainly
violates constitutional rights.
[A] defendant may contest the constitutionality of a statute
on its face or as-applied. A facial attack tests a law’s
constitutionality based on its text alone and does not consider the
facts or circumstances of a particular case. An as-applied attack,
in contrast, does not contend that a law is unconstitutional as
written but that its application to a particular person under
particular circumstances deprived that person of a constitutional
right. A criminal defendant may seek to vacate his conviction by
demonstrating a law’s facial or as-applied unconstitutionality.
Commonwealth v. Bradley, 232 A.3d 747, 756-57 (Pa. Super. 2020)
(citation omitted & paragraph break added). “If there is any doubt that a
challenger has failed to [demonstrate the] high burden [of establishing the
unconstitutionality of a statute], then that doubt must be resolved in favor of
finding the statute constitutional.” Collins, 286 A.3d at 785 (citation
omitted).
Here, Appellant challenges the constitutionality of subsection (a)(7) of
the harassment statute, which provides, in pertinent part:
(a) Offense defined.─A person commits the crime of
harassment when, with intent to harass, annoy or alarm
another, the person:
…
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(4) communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language,
drawings or caricatures;
(5) communicates repeatedly in an anonymous manner;
(6) communicates repeatedly at extremely inconvenient
hours; or
(7) communicates repeatedly in a manner other than
specified in paragraphs (4), (5) and (6).
…
(f) Definitions.─As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
“Communicates.” Conveys a message without intent of
legitimate communication or address by oral, nonverbal,
written or electronic means, including telephone, electronic mail,
Internet, facsimile, telex, wireless communication or similar
transmission.
18 Pa.C.S. § 2709(a)(4)-(7), (f) (emphases added). Therefore, a person may
be convicted of harassment under subsection (a)(7) if, with the intent to
harass, annoy or alarm another person, she communicates a message
repeatedly without the intent of a legitimate communication. See 18 Pa.C.S.
§ 2709(a)(7), (f).
(a) State Constitutional Challenge
As noted supra, Appellant challenges the constitutionality of Section
2709(a)(7) under both the United States and Pennsylvania Constitutions. See
Appellant’s Brief at 18-19. We conclude, however, that Appellant has waived
her claim under Article I, Section 7 of the Pennsylvania Constitution because
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she did not sufficiently articulate a separate state constitution claim before
the trial court. As we have repeatedly recognized:
The Pennsylvania Rules of Appellate Procedure specify that issues
that are not first raised in the trial court are waived on appeal.
See Pa.R.A.P. 302(a). Even issues of constitutional dimension
cannot be raised for the first time on appeal.
Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (some
citations omitted).
Appellant’s only reference to the “broader” free speech protections
under Article I, § 7 of the Pennsylvania Constitution in the trial court was in
the following three paragraphs in her omnibus pretrial motion:
15. Article I, Section 7 of the Pennsylvania Constitution’s
Provisions are broader, and they predate those in the First
Amendment of the United States Constitution by roughly 13 years.
16. Article I draws clear lines around which speech may be civilly
actionable while keeping the government out of criminalizing
speech, whether written or spoken.
…
18. Article I, Section 7 comes down to the citizens of Pennsylvania
from the principles laid out in William Penn’s Frame of Government
in 1682, and its protections provide a complete and total privilege
against prosecution for the writing of political dissidents and other
unpopular statements published in the press.
Appellant’s Omnibus Pre-trial Motion at 5. Appellant did not provide any
argument or case law asserting a state constitutional claim in her brief filed in
support of that motion, nor did she present any such claim in her post-
sentence motion. See Appellant’s Brief in Support of Omnibus Pre-Trial
Motion, 9/23/21, at 2-7 (unpaginated); Appellant’s Post-Sentience Motion and
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Memorandum of Law at 2-4 (asserting her conviction “violates the First
Amendment of the U.S. Constitution as-applied to the facts and
circumstances”) (some capitalization omitted & emphasis added).
More importantly, Appellant did not identify an Article I, Section 7
challenge in her court-ordered Rule 1925(b) statement. Rather, she argued
only that the court erred in denying her post-sentence motion when her
conviction was “violative of the First Amendment of the U.S. Constitution
on its face or as applied to the facts and circumstances of the case.”
Appellant’s Statement of Errors Complained of on Appeal, 10/17/22, at 1
(emphasis added). Consequently, the trial court did not address a distinct
state constitutional challenge to the harassment statute in its opinion. Thus,
we conclude Appellant has waived her separate challenge to the harassment
statute based on the “broader” protections under Article I, Section 7 of the
Pennsylvania Constitution.9 See Commonwealth v. Armolt, 294 A.3d 364,
____________________________________________
9 Were we to find the issue was preserved in the trial court, we would,
nevertheless, conclude Appellant failed to present a cognizable state
constitutional claim in her brief on appeal. In Commonwealth v. Edmunds,
586 A.2d 887 (Pa. 1991), the Pennsylvania Supreme Court set forth four
factors a litigant should analyze when asserting an independent claim under
the Pennsylvania Constitution, including: (1) the text of the provision; (2) the
“history of the provision, including Pennsylvania case-law;” (3) related cases
from other states; and (4) relevant policy considerations.
Id. at 895.
Although the Supreme Court subsequently explained that a litigant is not
required to address all four factors in order to preserve a claim, she must
“specifically implicate the Pennsylvania constitution in the claim raised, cite
cases in support of the claim, and relate the cases to the claim.”
Commonwealth v. Crouse,
729 A.2d 588, 594 (Pa. Super. 1999), citing
Commonwealth v. White,
659 A.2d 896, 899 (Pa. 1995).
(Footnote Continued Next Page)
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379 (Pa. 2023) (holding defendant waived constitutional ex post facto claim
by failing to include it in Rule 1925(b) statement).
Accordingly, we turn our focus to Appellant’s multifaceted argument that
Section 2709(a)(7) violates her First Amendment right of free speech both on
its face and as-applied to the facts of her case.
(b) Facial Constitutional Challenge
Appellant first argues Section 2709(a)(7) is facially overbroad and
unconstitutional. See Appellant’s Brief at 19. She maintains that her appeal
presents a case of first impression, since the Pennsylvania Supreme Court has
not reviewed the constitutionality of Subsection (a)(7). Appellant’s Brief at
20. Although she recognizes that the Supreme Court rejected a facial
constitutional challenge to a prior version of the harassment statute in
Commonwealth v. Hendrickson, 724 A.2d 315 (Pa. 1999), Appellant insists
Hendrickson is not controlling here. She points out that Subsection (a)(7)
was not included in the statute the Hendrickson Court reviewed, and the
____________________________________________
Here, Appellant clearly implicated the protections of Article I, Section 7
in her argument. However, other than emphasizing that our state Constitution
provides “broader” protection than our federal Constitution, Appellant fails to
relate how this broader protection supports her claim. See Appellant’s Brief
at 19, 22, 25, 29, 33, 35, 37, 47, 50. Indeed, her consistent argument
throughout the brief is that because Section 2709(a)(7) infringes upon the
free speech protections under the First Amendment, it also violates the
“broader protections” under the Pennsylvania Constitution. See id. at 29, 35,
37, 47, 50. For this reason, too, we would conclude Appellant’s state
constitutional claim is waived.
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Court relied on “constitutional predicates that are no longer good law[.]” See
id. at 21-23. She maintains that the United States Supreme Court has
clarified that “inherently expressive” conduct is protected by the First
Amendment, and the element “communicates repeatedly” in the current
statute “includes inherently expressive conduct.” Id. at 23-24, citing
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S.
47 (2006).
Relying upon a decision of the Third Circuit Court of Appeals, Appellant
argues that “[t]o fall outside the protection of the First Amendment, harassing
speech must be (1) subjectively viewed as such by the victim and (2)
‘objectively severe or pervasive enough that a reasonable person would agree
that is it harassment’ under the totality of the circumstances.” Appellant’s
Brief at 24, citing Saxe v. State College Area School Dist., 240 F.3d 200,
205 (3rd Cir. 2001). However, she cautions that when speech or expressive
conduct is protected under the First Amendment, “the subjective intent of the
speaker is irrelevant.” Appellant’s Brief at 26 (citation & internal quotation
marks omitted). Appellant maintains that because our culture has lost “the
ability to handle provocative criticism[,]” “[h]arassment is now equated with
merely hearing offensive speech[,]” and “persons are becoming convicted of
harassment based on the content, or viewpoint, of the communication,
because it is used to infer intent[.]” Id. at 27-28. She asserts, however, that
both the content of the communication and intent of the speaker are protected
by the First Amendment. Id. at 28.
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Appellant also insists that we must review the constitutionality of
Section 2709(a)(7) pursuant to the strict scrutiny standard because the
statute relies on the content of speech to determine harassment. See
Appellant’s Brief at 29-30. She contends that the statute fails strict scrutiny
for several reasons: (1) it does not delineate how many times a person must
communicate to constitute “too many times[;]” (2) “[t]o ‘communicate
repeatedly’ includes conduct that is ‘inherently expressive[;]’” (3) Subsection
(a)(7) does not even require a victim, that is, a communication to another
person; and (4) Subsection (a)(7) does not require the Commonwealth to
prove the communication lacked a “legitimate purpose.” See id. at 30, 32,
34 (citations & emphasis omitted).
Appellant recognizes that “First Amendment jurisprudence leaves one
other avenue [for otherwise protected speech] to survive strict scrutiny” ─
that is, “when the speaker intrudes on the privacy of the home, or the degree
of captivity makes it impractical for the unwilling viewer or auditor to avoid
exposure.” Appellant’s Brief at 34-35 (emphasis omitted), citing Erznoznik
v. Jacksonville, 422 U.S. 205, 209 (1975). Because Section 2709(a)(7) does
not require the Commonwealth to demonstrate that the victim/listener is
unable to avoid exposure to the offensive speech, Appellant insists the statute
is facially overbroad and violates her First Amendment rights.
We begin our analysis with the Supreme Court’s decision in
Hendrickson. In that case, the defendant repeatedly and anonymously faxed
documents containing “racial and ethnic statements and derogatory
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comments about the medical and legal professions” to “about forty people at
their offices.” Hendrickson, 724 A.2d at 316. In all, the individuals received
“about 400 faxes.”
Id. “The recipients testified that the faxes disrupted their
offices and invoked emotions of anger and fear.”
Id. at 317. The defendant
was subsequently arrested and charged with “multiple counts of harassment
by communication or address under 18 Pa.C.S. § 5504(a)(1) and (a)(2)[.]”10
Id. Following his conviction, the defendant filed a direct appeal asserting
Section 5504 was “unconstitutionally overbroad and vague in violation of the
United States” Constitution.11 Id.
Former Section 5504 provided as follows:
(a) Offense defined. — A person commits a misdemeanor of the
third degree if, with intent to harass another, he:
(1) makes a telephone call without intent of legitimate
communication or addresses to or about such other person any
lewd, lascivious or indecent words or language or anonymously
telephones another person repeatedly; or
(2) makes repeated communications anonymously or at
extremely inconvenient hours, or in offensively coarse language.
Hendrickson, 724 A.2d at 317, citing 18 Pa.C.S. § 5504(a)(1)-(2).
____________________________________________
10 Section 5504 was repealed effective February of 2003, and is now
encompassed in the harassment (18 Pa.C.S. § 2709(a)(4)-(7)) and stalking
(18 Pa.C.S. § 2709.1) statutes. See Commonwealth v. Collins,
286 A.3d
767, 776 (Pa. Super. 2022).
11 As Appellant points out, the defendant
also challenged the statute under
the Pennsylvania Constitution, but the Court determined that claim was
waived. See Hendrickson, 724 A.2d at 317 n.1.
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In reviewing the constitutionality of the statute, the Supreme Court
observed that “[a] statute is overbroad if by its reach it punishes a substantial
amount of constitutionally-protected conduct.” Hendrickson, 724 A.2d at
317-18 (citations omitted). The Court explained, however, that “[t]he
function of overbreadth adjudication . . . attenuates as the prohibited behavior
moves from pure speech towards conduct, where the conduct falls within the
scope of otherwise valid criminal laws that reflect legitimate state interests.”
Id. at 318 (citations omitted).
Upon review of Section 5504, the Supreme Court concluded the statute
was not unconstitutionally overbroad:
[T]he plain language of Section 5504 seeks to regulate conduct
intended to harass another. The government has a legitimate
interest in preventing the harassment of individuals. The statute
is not directed at the content of speech and is unrelated to
the suppression of free expression. Rather, the statute
focuses on the manner and means of communication and
proscribes communications made with an intent to harass. By
requiring an intent to harass, the statute does not punish
constitutionally-protected conduct and . . . is not facially
overbroad in relation to its legitimate purpose.
Hendrickson, 724 A.2d at 318 (emphases added).12
____________________________________________
12 Although Appellant does not raise a vagueness challenge on appeal, we note
that the Hendrickson Court also determined the statute was not
unconstitutionally vague. See Hendrickson,
724 A.2d at 319 (holding
language of statute, read in context, was sufficiently specific for defendant to
understand what was prohibited, and jury’s determination that he acted with
specific intent undercuts any argument that he did not understand the crime).
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As stated supra, Appellant first insists that we are not bound by the
decision in Hendrickson because Subsection (a)(7) was not included in the
prior statute. See Appellant’s Brief at 21-22. Upon our review, however, we
conclude that the decision in Hendrickson is controlling.
Although Subsection (a)(7) was not specifically included in the former
statute, Section 5504 proscribed the same conduct. Section 5504 provided
that a person was guilty of harassment by communication if, “with the intent
to harass another” she, inter alia, “[made] a telephone call without intent
of legitimate communication[;] or [made] repeated communications
anonymously or at extremely inconvenient hours or in offensively course
language.” See 18 Pa.C.S. § 5504(a)(1)-(2) (emphases added) (repealed).
Similarly, Section 2709(a)(7) provides that a person is guilty of harassment
“when, with the intent to harass, annoy or alarm another, the person . . .
communicates repeatedly in a manner other than specified in paragraphs
(4), (5), and (6)[,]” which proscribe, respectively, lewd or obscene words or
drawings, anonymous communications, and communications at “extremely
inconvenient hours[.]” See 18 Pa.C.S. § 2709(a)(4)-(7). Moreover, Section
2709(f) defines “[c]ommunicates” as “[c]onvey[ing] a message without
intent of legitimate communication . . . .” 18 Pa.C.S. § 2709(f) (emphasis
added). Therefore, Section 2709(a)(7), like former Section 5504, criminalizes
the act of repeatedly communicating a message, without any legitimate intent,
for the intended purpose of harassing, alarming or annoying another person.
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Accordingly, we conclude, as did the Hendrickson Court, that the
statute is not unconstitutionally overbroad because it “seeks to regulate
conduct” and “is not directed at the content of speech [or] the suppression
of free expression.” Hendrickson, 724 A.2d at 318 (emphasis added).
Rather, like former Section 5504, Section 2709(a)(7) “is directed at the
harassing nature of the communications, which the legislature has a legitimate
interest in proscribing.”
Id.
Appellant also contends that Hendrickson is not controlling because it
“rested on constitutional predicates that are no longer good law based on
subsequent precedents by the U.S. Supreme Court and the U.S. Court of
Appeals for the Third Circuit.” Appellant’s Brief at 23. Again, we disagree.13
Appellant asserts that more recent federal law regarding “inherently
expressive conduct” somehow undermines the decision in Hendrickson, and
that there is no “categorical harassment exception to the First Amendment’s
free speech clause.” See Appellant’s Brief at 23-24, citing Rumsfeld, 547
U.S. at 66; Saxe,
240 F.3d at 205. Our review of Hendrickson, however,
does not reveal any conflict. As noted supra, the Hendrickson Court relied
upon the fact that Section 5504 regulated the “harassing nature of the
____________________________________________
13 To the extent Appellant argues that Hendrickson should be overruled, we
remind her that “[i]t is a fundamental precept of our judicial system that a
lower tribunal may not disregard the standards articulated by a higher court.”
Commonwealth v. Randolph,
718 A.2d 1242, 1245 (Pa. 1998). See also
Commonwealth v. Edrington,
464 A.2d 456, 460 n.3 (Pa. Super. 1983)
(“[T]he Superior Court cannot overrule Supreme Court decisions.”).
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communications” not the messages conveyed. See Hendrickson, 724 A.2d
at 318. Thus, whether focusing on expressive speech or expressive conduct,
Section 2709(a)(7) prohibits the repeated communication of a message,
which has no legitimate intent, with the specific purpose of harassing,
annoying or alarming another person. See Rumsfeld,
547 U.S. at 65-67 (act
which denied federal funding to colleges that prohibited or prevented military
from recruiting on campus as a result of colleges’ disagreement with
government’s policy on homosexuals in military did not violate right to free
speech; “[t]he expressive component of [the] school’s actions is not created
by the conduct itself but by the speech that accompanies it”).
Moreover, Appellant’s reliance on Saxe is misplaced. She cites the
following test to determine whether harassing speech falls outside the
protection of the First Amendment: the “harassing speech must be (1)
subjectively viewed as such by the victim and (2) ‘objectively severe or
pervasive enough that a reasonable person would agree that it is harassment’
under the totality of the circumstances.” Appellant’s Brief at 24, citing Saxe,
240 F.3d at 205 (citation omitted). However, Appellant fails to describe the
context in which the Third Circuit applied this test, which, we conclude, is
critical.
In Saxe, the Third Circuit Court of Appeals considered whether a school
district’s anti-harassment policy was unconstitutionally overbroad. The policy
proscribed, inter alia, “unwelcome verbal, written or physical conduct directed
at the particular characteristic[s]” of another with “the purpose or effect of
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substantially interfering with the student’s education performance or creating”
a hostile environment. See Saxe, 240 F.3d at 202-03. The Saxe Court cited
the above test when discussing the concept of “‘hostile environment’
harassment.” See
id. at 205. Indeed, the quote relied upon by Appellant
specifically states that the test is relevant to determine if conduct constitutes
harassment under “a ‘hostile environment’ theory[.]”
Id. (emphasis
added).14 Moreover, in a footnote, the Third Circuit acknowledged that
“Pennsylvania’s criminal harassment statute” ─ Section 2709 ─ “covers a
much narrower range of conduct than [was] implicated by the” school policy
at issue.
Id. at 204 n.4 (emphasis added). Thus, we conclude the test in
Saxe is not relevant in the present case. Accordingly, we have neither the
authority nor the inclination to overrule Hendrickson. See Randolph,
718
A.2d at 1245.
Because we conclude the Supreme Court’s decision in Hendrickson is
dispositive of Appellant’s facial challenge to Section 2709(c), we need not
____________________________________________
14 Appellant fails to acknowledge the Saxe Court did not create the two-part
test ─ rather, it quoted the United States Supreme Court’s decision in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993). Harris, in turn, was not a
First Amendment case; rather the Harris Court considered the “definition of
a discriminatorily ‘abusive work environment’ (also known as a ‘hostile work
environment’) under Title VII of the Civil Rights Act of 1964[.]”
Id. at 18-19.
Thus, it is inapplicable here.
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engage in a prolonged discussion of the remaining arguments in Appellant’s
first issue. With regard to her call for “strict scrutiny” review,15 we note:
[C]ontent-based restrictions on speech are presumptively
unconstitutional and are subject to the strict scrutiny standard,
which requires the government to prove that the restrictions are
narrowly tailored to serve a compelling state interest.
Government regulation of speech is content based if a law
applies to a particular speech because of the topic
discussed or the idea or message expressed.
S.B. v. S.S., 243 A.3d 90, 104–05 (Pa. 2020) (citation & quotation marks
omitted; emphases added). Here, Section 2709 does not seek to regulate an
individual’s speech based on “the topic discussed or the idea or message
expressed[;]” rather, it regulates the manner in which a communication is
delivered. See id.; Hendrickson,
724 A.2d at 283 (holding harassment
statute “is not directed at the content of speech” but “focuses on the manner
and means of communication and proscribes communications made with an
intent to harass”). Accordingly, strict scrutiny is not required.
Further, relying upon Erznoznik, Appellant also contends that Section
2709(a)(7) is facially unconstitutional because it does not require the
Commonwealth to prove the victim/listener was unable to avoid exposure to
the offensive speech. See Appellant’s Brief at 34-35. Again, however,
Appellant relies on decisions which are factually dissimilar. The Erznoznik
Court considered the “facial validity of a [city] ordinance that prohibit[ed]
showing films containing nudity by a drive-in movie theater when its screen
____________________________________________
15 See Appellant’s Brief at 29-30.
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[was] visible from a public street or place.” Erznoznik, 422 U.S. at 206.
Because the ordinance, on its face, “discriminate[d] among movies solely on
the basis of content[,]” the Supreme Court applied strict scrutiny. See
id. at
209, 211. The Court observed that “selective restrictions [on speech] have
been upheld only when the speaker intrudes on the privacy of the home, . . .
or the degree of captivity makes it impractical for the unwilling viewer or
auditor to avoid exposure.”
Id. at 209 (citations & footnote omitted). As
discussed above, the statute at issue in the present case is not subject to strict
scrutiny because it does not seek to restrict the content of speech. Thus,
Appellant’s facial challenge to Subsection 2709(a)(7) fails.
(c) As-Applied Constitutional Challenge
Appellant also presents an as-applied challenge to the constitutionality
of the Section 2709(a)(7). She argues that application of the statute under
the facts and circumstances of her case violates her First Amendment rights.
Appellant’s Brief at 37. First, Appellant states that “strict scrutiny must be
applied” because her prosecution was “not content-neutral[;]” the contents of
her communications were admitted at trial and shown to the jury. See id. at
38. She points out that the Commonwealth argued to the jury that the
“messages were outlandish as a professional veterinarian.” Id. (emphasis
added & record citation omitted). Thus, Appellant suggests the jury was
required to consider the “content” of the speech.
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Further, Appellant categorizes the private messages as simply her
attempt to “communicat[e] a particularized viewpoint to” Victim on a matter
of public concern, namely animal abuse and neglect. Id. at 39-40. She
maintains that the First Amendment protects speech regardless of whether
others disapprove “of the ideas expressed[,]” and extends its protection to
the use of profanity. Id. at 40-41.
With regard to the particular facts of her case, Appellant emphasizes
that “the speech in question was a single episode that occurred within one day
─ August 5, 2020.” Appellant’s Brief at 42. Moreover, due to Facebook’s limit
regarding the number of sentences in a message, she insists that “her
numerous [p]rivate [m]essages are, in reality, a single communication, made
contemporaneously.” Id. Appellant asserts the Commonwealth did not prove
that her communications were “objectively severe or pervasive enough that a
reasonable person would agree that it is harassment” in order to pass the
Saxe test. See Saxe, 240 F.3d at 205; Appellant’s Brief at 42-43.
Moreover, Appellant argues that “[t]o survive constitutional strict
scrutiny as applied . . . the Commonwealth had to prove [Victim] was a captive
audience” as set forth in Erznoznik. See Appellant’s Brief at 43-44. She
claims that, here, Victim could have avoided the harassment by simply
blocking Appellant’s private messages ─ an action he chose not to take. See
id. at 46. Appellant insists Victim “chose to be harassed.” Id. at 48 (emphasis
omitted).
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We begin by reiterating that we are not required to review the
harassment statute under strict scrutiny. As explained supra, strict scrutiny
applies to content-based restrictions on speech ─ that is when the law “applies
to a particular speech because of the topic discussed or the idea or message
expressed.” S.B., 243 A.3d at 104-05 (citation omitted). Subsection
2709(a)(7) does not regulate speech based on the message expressed, but
rather “focuses on the manner and means of communication and proscribes
communications made with an intent to harass.” Hendrickson, 724 A.2d at
283.
Appellant contends, however, that her prosecution was “content-based”
because the Commonwealth relied on the content of her communications to
argue that her messages were “outlandish” and, in fact, displayed her
messages to the jury. See Appellant’s Brief at 38. She insists: “In order to
be content-neutral, basically, the contents of the defendant’s communications
cannot be admitted into the record or shown to the jury.” Id. Appellant cites
no authority supporting this broad claim, and our research has uncovered
none.
In Hill v. Colorado, 530 U.S. 703 (2000), the United States Supreme
Court considered the constitutionality of a statute that prohibited a person
from “speech-related conduct within 100 feet of the entrance to any health
care facility.”
Id. at 707. The statute prohibited a person from knowingly
approaching within eight feet of another, for the purpose of passing a leaflet,
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displaying a sign, or counseling. Id. In concluding the statute was content-
neutral, the Supreme Court observed:
It is common in the law to examine the content of a
communication to determine the speaker’s purpose. Whether a
particular statement constitutes a threat, blackmail, an agreement
to fix prices, a copyright violation, a public offering of securities,
or an offer to sell goods often depends on the precise content of
the statement. We have never held, or suggested, that it is
improper to look at the content of an oral or written statement in
order to determine whether a rule of law applies to a course of
conduct.
Hill, 530 U.S. at 721.
Similarly, here, the content of Appellant’s messages was relevant for
two purposes: (1) to determine if the messages were intended as legitimate
communications; and (2) to determine if Appellant’s intent was to harass,
alarm, or annoy Victim. The statue itself, however, is content-neutral.
Appellant was not guilty of harassment simply because Victim disapproved of
her messages or did not agree with her allegations of abuse. She was
convicted because the jury found she repeatedly sent messages to Victim, for
which she had no legitimate purpose, and did so with the intent to harass him.
Appellant’s as-applied constitutional challenge under Erznoznik fails for
the same reason as her facial challenge ─ the statue is not subject to strict
scrutiny. We also note that Erznoznik considered an ordinance which
purported to protect the privacy interests of the public at large. The Court
opined:
The . . . ordinance discriminates among movies solely on the basis
of content. Its effect is to deter drive-in theaters from showing
movies containing any nudity, however innocent or even
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educational. This discrimination cannot be justified as a means of
preventing significant intrusions on privacy. The ordinance
seeks only to keep these films from being seen from public
streets and places where the offended viewer readily can
avert his eyes. In short, the screen of a drive-in theater is not
‘so obtrusive as to make it impossible for an unwilling individual
to avoid exposure to it.’ Thus, we conclude that the limited
privacy interest of persons on the public streets cannot justify this
censorship of otherwise protected speech on the basis of its
content.
Erznoznik, 422 U.S. at 211-12 (citations & footnote omitted). Conversely,
the harassment statute, as-applied to Appellant, does not seek to protect the
privacy of the public at large. Rather, it seeks to prevent repeated
communications of a non-legitimate nature, made with the specific intent to
harass a specific listener. Accordingly, Erznoznik is inapplicable.
Lastly, with regard to Appellant’s assertion that her communications
were not “pervasive enough that a reasonable person would agree that it is
harassment[,]” we emphasize that she continues to rely upon a standard set
forth in Saxe, a decision that applies to hostile environment harassment, and
is not applicable here. See Appellant’s Brief at 43. Accordingly, we conclude
Subsection 2709(a)(7) satisfies First Amendment protections both facially and
as-applied.
IV. JURY INSTRUCTIONS
Next, Appellant argues the trial court erred in denying her post-sentence
motion for a new trial because the court refused to instruct the jury “on the
protections under the First Amendment of the U.S. Constitution.” Appellant’s
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Brief at 51. Specifically, she contends the court should have instructed the
jury that, in order to convict Appellant, it was required to determine whether
the speech was “objectively severe or pervasive enough that a reasonable
person would agree that it is harassment[,]” and whether Victim was a captive
audience, such that it was “impractical for [him] to avoid exposure to the
offensive speech.” See id. at 55 (citation omitted).
Our review of a challenge to the court’s jury instructions is well-settled:
[W]e review the charge as a whole to determine if it is fair and
complete. The trial court commits an abuse of discretion only
when there is an inaccurate statement of the law. A charge is
considered adequate unless the jury was palpably misled by what
the trial judge said or there is an omission which is tantamount to
fundamental error.
Commonwealth v. Lake, 281 A.3d 341, 347 (Pa. Super. 2022) (citation &
quotation marks omitted), appeal denied,
291 A.3d 333 (Pa. 2023).
First, we observe that Appellant does not specify where in the record
she requested the two charges she sets forth in her brief. See Appellant’s
Brief at 55. Although she cites to page 58 in the Reproduced Record, that
page corresponds to her post-sentence motion, and not to any proposed jury
instructions supplied to the trial court.
Second, as we discussed supra, neither the “objectively severe or
pervasive enough” test set out in Saxe, nor the captive audience requirement
pronounced in Erznoznik, are applicable under the facts presented here.
Thus, there would have been no basis for the trial court to instruct the jury on
those concepts.
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Third, we note:
“A general exception to the charge to the jury will not preserve an
issue for appeal. Specific exception shall be taken to the language
or omission complained of.” Pa.R.A.P. 302(b). Additionally, this
Court has held that, in the criminal trial context, the mere
submission and subsequent denial of proposed points for charge
that are inconsistent with or omitted from the instructions actually
given will not suffice to preserve an issue, absent a specific
objection or exception to the charge or the trial court’s ruling
respecting the points.
Commonwealth v. Sanchez, 82 A.3d 943, 978 (Pa. 2013) (some citations
omitted). Here, as we discuss infra, Appellant’s only on-the-record objection
to the trial court’s charge was that the court did not instruct the jury that her
First Amendment right to free speech trumped any statute to the contrary.
Consequently, she did not preserve an objection based on the specific
instructions she now requests in her brief.
Fourth, we conclude the trial court’s instruction was clear and
appropriate. With regard to the criminal charge of harassment, the court
instructed the jury as follows:
[Appellant] has been charged with harassment. To find
[Appellant] guilty of this offense you must find that each of the
following elements has been proved beyond a reasonable doubt.
First, that [Appellant] communicated repeatedly with
[Victim]. Now, what do we mean by communicate? To
communicate means to convey a message or address and
individual by oral, nonverbal, written or electronic means, such as
telephone, electronic mail, internet . . . all forms of electronic
communication, without intent of a legitimate communication.
And the second element is that [Appellant] did so with the
intent to harass, annoy or alarm [Victim]. A person acts
intentionally when it is his or her conscious object or purpose to
bring about such a result.
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So ladies and gentlemen, you have to determine whether
the crime of harassment has been committed. Yes, there is free
speech and we all know that and recognize that, but this law
basically says, for communication, at what point does it become
criminal.
N.T. at 154-55.
After the instructions were provided, Appellant’s counsel asked for a
sidebar, where the following discussion ensued:
[Appellant’s counsel]: I know we were talking off the record
earlier. So the only other thing that I would ask to be charged on
is that the First Amendment is superior and it overrules any
statute to the contrary and that if they find that the speech
is protected by the First Amendment, that they cannot
convict on the basis of the content of that speech. I would
ask for any instruction to that effect.
[Commonwealth’s counsel]: I thoroughly object to that.
That is not something that we’re here for today. We are here for
the charge of harassment.
[Appellant’s counsel]: Your Honor, I repeat, again, the ─
Article 6 of the Constitution said ─
[Commonwealth’s counsel]: You had adequate time to send
proposed instructions to [the trial court].
THE COURT: I think both of you have sort of outlined that.
I think it’s over to the jury. I like to think I made it clear in my
instructions that there is a right of free speech, but it would point
to draw the line. I think it’s clear so I’m not gonna confuse the
issue.
You have an exception. You made your objection timely.
You’re protected on the record. So just leave it at that. Thank
you.
N.T. at 155-56 (emphasis added).
We detect no error or abuse of discretion on the part of the trial court.
The court’s instruction focused the jury on Appellant’s actions and intent ─ not
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the content of her speech. The court acknowledged that citizens have the
right to free speech, but at some point the method or manner of
communication can become criminal. Accordingly, Appellant’s jury charge
challenge fails.
V. SUFFICIENCY OF THE EVIDENCE
In her final claim, Appellant argues the evidence was insufficient to
support her Section 2709(a)(7) conviction. Our review of a sufficiency claim
is well-settled:
A challenge to the sufficiency of the evidence presents a question
of law and is subject to plenary review under a de novo standard.
When reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth, were sufficient to prove every
element of the offense beyond a reasonable doubt. [T]he facts
and circumstances established by the Commonwealth need not
preclude every possibility of innocence. The Commonwealth may
sustain its burden of proving every element of the crime beyond
a reasonable doubt by means of wholly circumstantial evidence.
Commonwealth v. Collins, 286 A.3d at 773–74 (citations & quotation marks
omitted). Moreover, “we may not reweigh the evidence or substitute our own
judgment for that of the fact finder.” Commonwealth v. Cox, 72 A.3d 719,
721 (Pa. Super. 2013) (citations & quotation marks omitted).
As noted above, in order to convict Appellant of harassment under
Subsection 2709(a)(7), the Commonwealth was required to prove that she
communicated a message repeatedly, without the intent of a legitimate
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communication, and with the specific intent to harass, annoy or alarm Victim.
See 18 Pa.C.S. § 2709(a)(7), (f).
Appellant first insists that she engaged in “constitutionally protected
activity” pursuant to Section 2709(e), and therefore her intent to harass
Victim is irrelevant. See Appellant’s Brief at 55-56. She also maintains the
record “does not support a reasonable inference of [her] intent to alarm
[Victim] based on an e-mail and Facebook private messages within a single
day.” Appellant’s Brief at 56. Appellant emphasizes that there was no physical
contact between the two, nor threats of physical harm ─ “[a]t best, [Victim]
subjectively felt threatened by the content of her speech that she was going
to have his dogs taken away[.]” Id. at 57. Moreover, she contends that she
did not act without a legitimate purpose, and, in fact, encouraged Victim to
contact her attorney. Id. at 56.
The trial court concluded the evidence was sufficient to support the
verdict based on the following:
Appellant sent no fewer than ten messages to Victim though a
variety of mediums, including text messaging, Facebook
messaging, and email. These message were sent despite multiple
pleas by Victim that Appellant cease communicating with him.
And although Appellant claims that she sent some of the messages
out of concern for Victim’s dogs, most of the messages consisted
of disrespectful, vulgar, or otherwise unprofessional language,
and some of the messages contained very personal information
about . . . Victim and his wife that had absolutely nothing to do
with pets or veterinary care whatsoever. This includes the
Facebook messages in which Appellant provided screenshots of
Victim’s financial information and information regarding traffic
violations previously committed by Victim’s wife. Appellant
herself even conceded that she was “so worked up that [she] used
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improper language”, and that she was “haughty” and
“overreacted” and that she “should have taken a step back and
more calmly explained why [Victim and his wife] should have been
more concerned.[”] Based on all of this evidence, any reasonable
juror could easily find that these messages were not sent with a
constructive purpose in mind and they were sent for no other
purpose than to harass, annoy, or alarm Victim and/or his wife.
Therefore, there was ample evidence to support the jury’s finding
that Appellant had harassed Victim[.]
Trial Ct. Op. at 7-8.
Upon our review, we agree the evidence was sufficient to support the
verdict. As discussed supra, Appellant was not convicted for engaging in
constitutionally protected activity. She was convicted based on her conduct,
not the content of her speech.
Moreover, while Appellant attempts to downplay the repeated nature
of her communications ─ emphasizing she merely sent one email and several
private Facebook messages all within a single day ─ we conclude the evidence
supports the jury’s verdict. After their argument in the parking lot, at 5:24
p.m., Appellant sent Victim an unsolicited text accusing him of animal abuse.
See N.T. at 34; Commonwealth’s Exhibit 9. About 10 minutes later, she sent
Victim a private Facebook message informing him she would be reporting
him for the alleged mistreatment of his dogs. See N.T. at 37;
Commonwealth’s Exhibit 2. At that point, Victim explicitly requested that
Appellant end all contact with him. Id. Around the same time, Victim received
a Facebook friend request from Appellant, which he did not accept. See
N.T. at 36-37.
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At approximately 6:20 p.m., Appellant sent Victim an email in which
she, again, accused Victim and his wife of abusing their dogs, describing them
as “inhumane” and “uncaring assholes,” and providing the name of her
attorney (her father) in case they wanted to sue her. N.T. at 44-45;
Commonwealth’s Exhibit 8. Despite Victim’s earlier explicit plea to stop all
contact, at approximately 7:07 p.m., Appellant sent Victim eight successive
Facebook messages accusing Victim and his wife of neglecting their dogs, and
informing Victim he could block her and contact her attorney.16 See N.T. at
38-39; Commonwealth’s Exhibits 2-4. At 7:45 p.m., Victim, again, explicitly
requested Appellant to “please stop contacting” him. N.T. at 40;
Commonwealth’s Exhibit 4.
Rather than cease all communication, Appellant responded that it was
“a free world” and Victim could “block” her on Facebook; she also stated
“Ouch, this must hurt.” N.T. at 40. Appellant then sent Victim pictures of his
financial information and his wife’s traffic violation ─ information that had
nothing to do with her alleged concern for the safety of Victim’s dogs. See
id. at 40-41; Commonwealth’s Exhibits 5, 6. After receiving no response from
Victim, Appellant sent another series of messages at 9:54 p.m. which included
the names of her lawyers and the comment, “I do not have time for low lifes
____________________________________________
16 Appellant claims these messages were, in actuality, one message sent in
“blocks of four or five sentences[.]” N.T. at 116. Regardless, Appellant still
continued to send messages to Victim with no purpose other than to harass
or annoy him.
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with broke moral compasses.” See N.T. at 42; Commonwealth’s Exhibit 7.
Victim responded by informing Appellant he had contacted the police, and
again asked her, for the third time, to “stop.” Id. Two hours later, at 11:41
p.m., Appellant responded: “We’ve chatted. I told them everything.” N.T. at
42-43; Commonwealth’s Exhibit 7.
Although the communications occurred over one evening, Appellant
contacted Victim by three different means ─ text, email and Facebook
message ─ and sent numerous messages after Victim twice requested that
she stop contacting him. Furthermore, the jury acted within its discretion
when it rejected Appellant’s claim that she sent the messages for a legitimate
purpose, i.e., to alert Victim of her intention to report him for animal neglect.
Without any response from Victim, Appellant denigrated him and his wife by
quickly resorting to name-calling and sending pictures of unrelated personal
information. While this information was public, the jury could reasonably
conclude that Appellant’s intention had nothing to do with her concern for
Victim’s pets. Moreover, her repeated messaging of Victim ─ which regressed
into matters irrelevant to the care of his pets ─ despite his pleas to stop,
supports the jury’s determination that Appellant acted with the specific intent
to harass, annoy or alarm Victim. Accordingly, Appellant’s final claim fails.
VI. CONCLUSION
Therefore, we conclude that Section 2709(a)(7) does not violate
Appellant’s First Amendment right to free speech either facially or as-applied.
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We also reject Appellant’s challenges to the trial court’s jury instructions and
the sufficiency of the evidence supporting her convictions. Consequently, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/20/2023
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