Commonwealth v. Darrah

COMMONWEALTH OF PENNSYLVANIA v. LISA MARIE DARRAH Appellant

No. 500 WDA 2021

Superior Court of Pennsylvania

November 29, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered March 9, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014255-2019

BEFORE: BENDER, P.J.E., DUBOW, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

PELLEGRINI, J.

Lisa Marie Darrah (Darrah) appeals from the judgment of sentence imposed in the Court of Common Pleas of Allegheny County (trial court) following her bench conviction of two counts of harassment and one count of disorderly conduct^[1] for her treatment of her neighbors Kelly Keller (Keller) and Keller's daughter, Mia Jarnot (Jarnot). On appeal, Darrah challenges the sufficiency of the evidence supporting her conviction. We affirm.

I.

A.

This case arises from a series of incidents in the summer and fall of 2019 during which Darrah shouted obscenities at Keller and Jarnot. Jarnot was 17 years old at the time. The parties reside in a residential neighborhood of 44 houses with 14 single-family homes on their street. Darrah is wheelchair bound and resides with her mother next door to Keller.

B.

At Darrah's February 2021 bench trial, the Commonwealth presented the testimony of Keller, Jarnot and Officer Thomas Trocki of the West Deer Township Police Department. Keller testified that during a neighborhood yard sale on July 14, 2019, at which "there were a lot of people coming and going," Darrah "was riding back and forth in front of my driveway and she yelled some sort of obscenity." (N.T. Trial, 2/08/21, at 19). Darrah went to a neighboring home before riding past Keller's property again while Keller was in her garage looking at her phone. Darrah accused Keller of videotaping her and yelled numerous obscenities at Keller, including "fucking bitch" and "filthy cunt." She screamed: "You are so fucking ugly, why don't you put some makeup on. Pig." (Id. at 19-20). Keller filed a police report the next morning.

At approximately 6:00 p.m. on July 15, 2019, Darrah yelled graphic insults to Keller concerning Jarnot as Keller washed her car in her driveway. Keller testified that Darrah "started commenting about my daughter being 'fucking ugly' and being a 'whore' and that she had nudes [photographs] of my daughter and they were spread all over West Deer." (Id. at 21). Darrah shouted these insults while looking directly at Keller from her driveway at a distance of about 25 to 30 feet away. (Id. at 22). Darrah then sent Keller a note through Facebook Messenger stating, "Take all the videos you want honey. I know tons of young men that have naked pictures of your daughter. Be careful what you wish for. Don't harass me again. This is your final warning . . . Little piglet she is. You got to be ashamed of yourself that you raised a daughter that is so sleazy." (Id. at 24).

On July 31, 2019, while Keller and Jarnot were on their back patio with Keller's husband, Darrah yelled to them from her patio, "You dike-looking fat bitch. You go down on chicks you are so ugly. You fat dike bitch. And little dope smoking bitch you got over there like her fat-ass mother. You dike . . . Do you like men or do you go down on chicks?" (Id. at 26). Keller recorded the incident using her cell phone.

On October 12, 2019, as Jarnot was preparing to leave for a homecoming dance, Darrah yelled obscenities at her and Keller. They went inside of their home to avoid Darrah and Keller called the police. Jarnot called her friends to pick her up and when they arrived she quickly left in their vehicle. Officer Trocki arrived at the scene as Darrah was still shouting insults. Keller testified that from the time of the first incident with Darrah at the yard sale in July until the homecoming incident in October, she called the police four or five times to report Darrah's conduct.

Jarnot testified regarding a July 30, 2019 incident wherein "a couple of friends had stopped by my house before I went to volleyball, and I went outside to talk to them and [Darrah] came outside and started yelling at me, calling me a 'fat hoe' and accused me of doing a drug deal." (Id. at 43). Darrah then took a photograph of her "and it circulated to some people, and then it was sent to a friend of mine in the car, who forwarded it to me." (Id.). Jarnot did not respond to Darrah and instead went into her house because she was "really embarrassed and scared." (Id.). On July 31, 2019, while she was on the patio with her mother, Darrah screamed, "You dike-looking fat bitch. You go down on chicks you are so ugly. You fucking dike bitch." (Id. at 44). Darrah also called her a "drug addict" and a "dope smoking little fucking bitch." (Id.). Regarding the October 12, 2019 homecoming incident, Jarnot explained that she was outside her house "about to start taking pictures in my dress and [Darrah] came outside" and began yelling from her driveway that Jarnot was a "whore . . . so fucking ugly" she "couldn't even get a date." (Id.). Darrah also asked her if she "liked men or eat pussy." (Id.). Jarnot testified that she never responded to Darrah's insults because she "was just too afraid to say anything back." (Id. at 45).

Officer Trocki testified that he took Keller's report of harassment on July 15, 2019, and that he immediately called Darrah and left a message asking her to return the call. Darrah did not return the call but did answer the phone the next day. The officer described Darrah's demeaner as "extremely angry and irritated" as she talked over him during the call. Darrah yelled that she would call Keller "a fat fucking pig" and other vulgar terms if she wanted to. (Id. at 48). Darrah referred to Jarnot as a "little slut [who] little boys have naked pictures of[.]" (Id. at 49). When Officer Trocki advised Darrah not to continue this conduct, she indicated that she would not comply with this directive. Officer Trocki was dispatched to the Keller residence on October 12, 2019, and when he arrived, Darrah was in her driveway screaming vulgarities. The officer directed her to go inside her home.

The defense did not call any witnesses on Darrah's behalf at trial after the court conducted a thorough colloquy. The court permitted the parties to submit briefs on the legal issues involved in the case. On March 9, 2021, the trial court convicted Darrah of the aforementioned offenses^[2] and sentenced her to an aggregate term of two years of probation. This timely appeal followed. Darrah and the trial court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b). In its opinion, the court expressly found the testimony of Keller and Jarnot credible as to Darrah's derogatory insults and profanity directed at them. (See Trial Court Opinion, 6/22/21, at 6).

II.

Darrah first contests the sufficiency of the evidence supporting her conviction of harassment. Darrah characterizes the incidents with Keller and Jarnot as "merely name-calling during an ongoing dispute with her neighbors [and] de minimus conduct" falling short of criminal harassment. (Darrah's Brief at 12). Darrah also challenges the element of intent by arguing the evidence did not demonstrate that she had the specific intent to harass, annoy or alarm either Keller or Jarnot.^[3] The Crimes Code provides in relevant part: "A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person . . . (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures[.]" 18 Pa.C.S. § 2709(a)(4). "An intent to harass may be inferred from the totality of the circumstances." Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (citation omitted). Additionally, Section 312 provides for dismissal of a case where an infraction is negligible:

§ 312. De minimis infractions

(a) General rule.─The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:

(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;

(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or

(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.

18 Pa.C.S. § 312(a)(1)-(3).^[4] "An offense alleged to be de minimis in nature should not be dismissed where either harm to the victim or society in fact occurs." Toomer, supra at 960 (citation omitted).

In the instant case, the trial court rejected Darrah's sufficiency challenge to her harassment conviction, reasoning:

Keller and Jarnot credibly testified to several incidents wherein Appellant shouted vulgar insults at them, degraded their physical appearance, and accused Jarnot of illegal activity and sexual promiscuity. These actions rise above de minimus infractions and establish Appellant's clear and specific intent to harass, annoy, or alarm Keller and Jarnot. Furthermore, screaming obscenities at Keller and Jarnot, and repeatedly making derogatory comments regarding Jarnot's sexual promiscuity, satisfy the element of lewd, lascivious, threatening or obscene in this matter.

(Trial Ct. Op., at 6) (quotation marks and case citation omitted).

After review of the record, we agree with the trial court's assessment. Contrary to Darrah's view that the incidents merely amounted to a few instances...