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COMMONWEALTH PENNSYLVANIA v. MARC JAY KOZINN (01/12/89)

filed: January 12, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
MARC JAY KOZINN, APPELLANT



Appeal from the Judgment of Sentence of January 22, 1988 in the Court of Common Pleas of Lancaster County, Criminal, No. 90 of 1987.

COUNSEL

Norman E. Greenspan, Philadelphia, for appellant.

Wieand, McEwen and Melinson, JJ. Wieand, J., concurs in the result.

Author: Mcewen

[ 381 Pa. Super. Page 65]

We here consider an appeal from the judgment of sentence to pay a fine of $500, imposed after a jury determined that appellant was guilty of two counts of harassment by communication or address, 18 Pa.C.S. ยง 5504(a). We affirm.

The distinguished Judge Michael A. Georgelis has, in his able opinion, aptly summarized the evidence:

On November 16, 1986, at 8:20 p.m., seventeen year old Melissa Nell (Melissa) and her mother, Shirley Fasig, each picked up a telephone in order to answer an incoming call. The caller asked for Melissa Nell, and, accordingly, Melissa stayed on the line while her mother hung up her telephone. The caller identified himself as Craig Williams (or as the Defendant testified, Craig Jacobs). The Defendant testified that he selected Miss Nell's telephone number at random out of the telephone directory. Hereafter, Melissa's testimony and the Defendant's testimony conflict somewhat; nevertheless, the rest of the conversation continued generally in the following manner. The Defendant told Melissa that he was conducting a lingerie survey and asked several questions pertaining to the survey. The conversation then turned to the Defendant's offer to perform a body massage on Miss Nell.

[ 381 Pa. Super. Page 66]

The Defendant described an activity in which both he and Melissa could be nude and in which she could massage him as well. Melissa testified that the Defendant then asked her if she ever had intercourse and he proceeded to describe an illicit sexual activity.

The Defendant indicated that he would like to make an appointment with Melissa for eight o'clock that evening. Although Melissa replied that she had to work that evening, the Defendant, undeterred, suggested that he would telephone before coming over in order to make sure she was home.

The Defendant called Melissa that evening at 7:55 p.m. Melissa testified that she answered the telephone and when she recognized the Defendant's voice, she replied that she was Melissa's sister. She further testified that she misrepresented her identity because she was "scared". She stated that Melissa was not at home. The Defendant ended the conversation by indicating that he would come over and wait for her.

Shortly after the telephone call, Melissa heard a knock on the door, which prompted her to telephone her brother, Larry Nell, for help. Larry and her other brother, Fred Nell, arrived at the home at approximately the same time and noticed the Defendant standing on the front porch of the house. While Fred talked to the Defendant on the porch, Larry entered the house from the back door and discussed the situation with his sister. Larry returned to the porch and told the Defendant that his sister was not home, and Defendant eventually left. Melissa's mother was telephoned concerning the incident, and she, subsequently, called the police.

The Defendant again telephoned the residence November 19, 1986 and asked for Melissa. Ms. Fasig, who was concerned for Melissa's safety and wanted to see the Defendant apprehended, posed as Melissa. The Defendant again asked questions pertaining to a massage and again related that both he and ...


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