Commonwealth v. Rosenberger

1

COMMONWEALTH OF PENNSYLVANIA v. GREGORY EARL ROSENBERGER Appellant COMMONWEALTH OF PENNSYLVANIA v. GREGORY EARL ROSENBERGER Appellant

Nos. 477 EDA 2023, 496 EDA 2023

Superior Court of Pennsylvania

July 3, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered January 4, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002056-2021, CP-46-CR-0006563-2021

Benjamin D. Kohler, Esq.

BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM

SULLIVAN, J.

Gregory Earl Rosenberger ("Rosenberger") appeals from the judgment of sentence following his jury convictions of four counts of disorderly conduct, graded as third-degree misdemeanors, and two counts of the summary offense of harassment.^[1] For the reasons discussed below, we affirm.

We take the underlying facts and procedural history from our review of the certified record.

Rosenberger lived with his parents when B.V., her husband J.V., and their three children, sons J. and P., and daughter E. (collectively "the victims"), moved next door in 2015.^[2] See N.T., 9/20/22, at 84-89. In 2017, P was diagnosed with cancer. See id. at 85; 123-24. Because of this, B.V. worked from home for the next three years. See id. at 85-86.

In October 2019, Rosenberger, who was not well-acquainted with B.V., came to her home and asked to speak with her. See id. 96-97. Rosenberger explained he had posted upsetting notes to B.V. in his window. See id. at 97. Rosenberger told B.V. he suffered from depression, had no friends, and then sexually propositioned her. See id. at 97-98. Rosenberger looked at her genital area and said, "Come on, you're not even wet right now." Id. at 98. B.V. asked him to leave, and Rosenberger again propositioned her. See id. at 99. B.V. escorted him out of her home. See id.

A few minutes later, Rosenberger returned; while he initially apologized and asked B.V. not to tell her husband, he then propositioned her again. See id. at 100-01. The incident so concerned B.V. that she called J.V. at work and asked him to activate the home's security cameras. See id. at 101. She also contacted her sister, who came to B.V.'s home and called the police. See id. at 102-03. Despite the presence of the police, Rosenberger knocked on B.V.'s door. See id. at 102. The police spoke with Rosenberger and told him B.V. did not want to have any contact with him. See id. at 102; N.T., 9/21/22, at 54-55.

Rosenberger commenced a sustained campaign of harassment against B.V. and her family, necessitating multiple calls to the police. See N.T., 9/20/22, at 103-05; 9/21/22, at 31-32, 44-45, 56. Rosenberger flashed lights into B.V.'s home and placed notes, some including further sexual propositions, in windows facing B.V.'s home. See N.T., 9/20/22, at 103-05. Rosenberger would repeatedly shout and hit the windows to draw attention to the notes. See id.

The police advised B.V. to document Rosenberger's actions and call them whenever Rosenberger became problematic. See id. at 105, 112, 132. Much of Rosenberger's behavior was recorded on B.V.'s home security system. See id. at 113-31; see also N.T., 9/21/22, at 72-79.

In January 2020, the police arrested Rosenberger. See id. at 106; N.T., 9/21/22, at 35, 50. As a result of that arrest, Rosenberger pleaded guilty to harassment in November 2020; the trial court sentenced Rosenberger to probation and ordered him to have no contact with B.V. and her family.

Despite this, Rosenberger continued to bang on the windows, talking and shouting profanity at B.V. and her children, as well as yelling about suicide. See id. at 110-11. Rosenberger also began to make threats against the victims, shouting that he thought about killing B.V. and her family. See id. at 110-12. Rosenberger would come out of his house to watch the family, and, on a few occasions, B.V. was too frightened to leave her car and the police would escort her into her home. See id. J.V. confirmed B.V.'s testimony regarding Rosenberger's behavior, including hearing Rosenberger say he was going to kill the "whole fucking family." N.T., 9/21/22, at 71-72; see also id. at 74.

In September 2020, B.V.'s home security system recorded Rosenberger saying, "[b]eat you, stab you, shoot you, bleed you." Id. at 77. In an earlier recording, Rosenberger stated B.V.'s "family, friends, and neighbors aren't safe." Id. at 79. In a February 2021 recording, Rosenberger, presumably referring to B.V., called her "[f]ucking smiling, fucking piece of shit." N.T., 9/20/22, at 116. On a March 8, 2021, recording, Rosenberger loudly said, "[f]uck those mother fuckers [sic]," and "[f]uck you, cunt," and "you're trying to prosecute a person for jerking off in front of children." Id. at 115-20. In the same recording, Rosenberger made references to B.V.'s children and B.V. "exploiting" her child with cancer. Id. at 119-23. As a result of the March 2021 incident, the police arrested Rosenberger and charged him with stalking, disorderly conduct, and harassment at case CP-46-CR-0002056-2021. Rosenberger was released on bail and, as a condition of bail, told to have no contact with the victims.

However, Rosenberger continued to harass the victims. In October 2021, a lengthy recording captured Rosenberger calling B.V. "[a] beautiful woman," and then saying, "I can't wait till you're subject to having to look at a [sic] abuser of women and children for the rest of your life." Id. at 126-27. B.V. could hear Rosenberger from inside her home; he next stated something was "equivalent to a dick pic," four separate times. Id. at 127. Other recordings from October 2021, captured Rosenberger cursing and yelling at the victims in the middle of the night. See id. at 129-30.

At trial, J.V. testified that between June and October 2021, Rosenberger was captured on video saying, presumably in reference to J.V., he was going to "bash that fucker [sic] joker's head in.'" N.T., 9/21/22 at 78. J.V. recalled he was packing the car for a family vacation when Rosenberger came outside his house to watch him and said, "yeah, five caskets will do." Id. at 79-80. The statement concerned J.V., who called the police, and they escorted the victims into their car. See id. at 79-81.

The police again arrested Rosenberger and charged him with stalking, disorderly conduct, and harassment at case number CP-46-CR-0006563-2021 with respect to incidents occurring between June and October 2021. The trial court consolidated the cases for trial and a jury convicted Rosenberger of the above offenses but acquitted him of three counts of harassment. The jury deadlocked on two charges of stalking. After receipt of a presentence investigation report and various psychological evaluations, the trial court sentenced Rosenberger to an aggregate sentence of time-served to twelve months in prison to be followed by probation. Rosenberger was again ordered to have no contact with the victims and to stay away from their residence. Rosenberger filed timely post-sentence motions, which the trial court denied. This timely appealed followed.^[3]

On appeal, Rosenberger raises three issues for our review:

I. Was the evidence presented at trial insufficient to sustain the guilty verdict at CP-46-CR-0002056-2021 for count five, disorderly conduct under 18 Pa.C.S.A. § 5503(a)(3), because it was not proven beyond a reasonable doubt that [Rosenberger] ─ between April 1, 2020[,] and March 8, 2021[,] ─ used "obscene language"[?]

II. Was the evidence presented at trial insufficient to sustain the guilty verdict at CP-46-CR-0006563-2021 for count six, disorderly conduct under 18 Pa.C.S.A. § 5503(a)(3), because it was not proven beyond a reasonable doubt that [Rosenberger] ─ between June 24, 2021[,] and June 26, 2021[,] ─ used "obscene language"[?]

III. Was the evidence presented at trial insufficient to sustain the guilty verdict at CP-46-CR-0006563-2021 for count five, disorderly conduct under 18 Pa.C.S.A. § 5503(a)(2), because it was not proven beyond a reasonable doubt that [Rosenberger] ─ between June 24, 2021[,] and October 26, 2021[,] ─ made "unreasonable noise"[?]

Rosenberger's Brief at 3^[4] (capitalization and citations standardized).^[5]

All three of Rosenberger's issues challenge the sufficiency of the evidence. Pertinently:

[w]e review claims regarding the sufficiency of the evidence by considering whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact[]finder to find every element of the crime beyond a reasonable doubt. Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact- while passing on the credibility of the witnesses and the weight of the evidence-is free to believe all, part, or none of the evidence. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact[]finder.

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations and quotation marks omitted).

The crimes code defines disorderly conduct as follows:

(a) Offense defined.--A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

* * * * *

(2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture[.]

18 Pa.C.S.A. § 5503(a)(2) and (3). The statute does not define either "unreasonable noise" or "obscene." See id. It defines "public" as "affecting or likely to affect persons in a place to which the public or a substantial group has access; . . . any neighborhood, or any premises which are open to the public." 18 Pa.C.S.A. § 5503(c).

In his first and second issues,...