No. 2977 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County at No. Misc. 77-002430.
Robert S. Robbins, Philadelphia, for appellant.
Gary Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Popovich and Montgomery, JJ.
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Appellant, Joseph Evans, was initially convicted of the summary offense of harassment (18 Pa.C.S.A. § 2709) in the Municipal Court of Philadelphia County. The sentence entered consisted of a $50.00 fine. Thereafter, appellant sought relief via the Post-Conviction Hearing Act (19 P.S. § 1180-1 et seq.) and was granted a trial de novo in the Court of Common Pleas before the Hon. Charles L. Durham. In the bench trial, appellant was again found guilty of harassment and, after the denial of post-trial motions, sentenced to serve thirty to ninety days imprisonment starting December 19, 1980.*fn1 This appeal followed. Appellant now complains that: 1) the evidence was insufficient to warrant his conviction; 2) the trial court erred in admitting evidence of prior acts attributed to the accused in regard to the complainant's cause of action; and 3) the sentence imposed was not proper under the circumstances. We affirm in part, vacate in part and remand for proceedings consistent with this opinion.
According to the evidence presented at trial, the following facts were adduced: In April of 1974, the complainant, Barbara Cohan-Duffy, was employed at Horizan House in
[ 299 Pa. Super. Page 532]
Philadelphia, Pa. As part of complainant's duties, she ran a social services program that was open to all persons. Appellant attended some of the programs and, in the course thereof, met the complainant.
As to the incident in question, the complainant testified that it occurred very late in the evening of August 5, 1975. The scenario began with the doorbell to Ms. Duffy's apartment being rung. The complainant answered by using the intercom and a person identifying himself as the appellant "began to say some pretty horrible things to [her]." (N.T. 7/11/80, at 15) Although the witness could not recall the exact words used,*fn2 she did remember that the person stated "[she] had a sexual relationship with one of the client's at Horizan House, and was very abusive over the intercom." Id. at 16. The police were immediately called and arrested the appellant at the scene.
The victim also testified how, during April of 1974, she received numerous notes and letters affixed with the appellant's signature. For example: a note written on a telephone memorandum slip, dated 4/6/74 and signed "Joe Evans," was left in her mailbox at Horizan House. The note read in part, "you are full of shit. Don't think I'm not aware of your jive . . . . Don't be surprised at what I say to you from now on." Id. at 22 and 23. The same modus operandi was used with regard to a note dated 5/25/74; it contained the following relevant language, "You are a bitch. You are arrogant, rude and a one-sided busybody . . . . You ain't shit, Barb. You want to be a man so bad. Take care you good for nothing whore." Id. at 23 and 24. Furthermore, Ms. Duffy recalled how the appellant would watch her apartment at all hours of the day and night from the parking lot located across the street from her residence. Id.
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at 26-27. Specifically, on June 9, 1975, around 5:30 PM, Ms. Duffy was walking home with a co-worker when appellant started following the two and began yelling, "Fuck you Cohan, I'm going to strangle you when I get ahold [sic] of you . . . ." Id. at 35. Such surveillance occurred on another occasion when the complainant was in the ...