J.A02038/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

JANET MARIE COOPER, :

:

Appellant :

: No. 1438 MDA 2015

Appeal from the Judgment of Sentence July 27, 2015

in the Court of Common Pleas of Berks County Criminal Division

at No(s): CP-06-SA-0000161-2015

BEFORE: PANELLA, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 17, 2016

Appellant, Janet Marie Cooper, appeals from the judgment of sentence 

entered in the Berks County Court of Common Pleas following her summary 

criminal conviction for harassment.1 Appellant argues that the evidence was 

insufficient to support her conviction and we agree. We reverse.

We glean the pertinent facts and procedural history from the trial 

court’s opinion and the certified record. The incident underlying this appeal 

occurred on October 9, 2014. At that time, Appellant was employed by the 

Reading School District as a teacher’s aide at the Tyson-Schoener 

Elementary School. Appellant had been working for the Reading School 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2709(a)(1).
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District for approximately nineteen years, as both an education assistant and 

a parent coordinator. On the date in question, Appellant was supervising a 

group of eight special needs students at recess on an outdoor playground. 

Appellant was standing next to a sliding board supervising several students, 

including the particular student at issue here, an eight-year-old boy with 

autism (“D.M.”). Several of the students were proceeding down the slide 

head-first. In the interest of safety, Appellant instructed them to only use 

the slide in a sitting position.

After being corrected, D.M. approached the slide and proceeded down 

in a sitting position. However, as he was coming down the slide, he hit 

Appellant in the face with an open hand, jarring Appellant’s glasses and 

causing some injury to her face. Appellant’s hand then came in contact with 

D.M.’s face, causing him to exclaim, “ow, my ear,” once he reached the 

bottom of the slide. The entire incident took five to ten seconds. On 

October 10, 2014, the Reading Police Department issued a citation to 

Appellant for the summary offense of harassment. 

A Magisterial District hearing was conducted on April 8, 2015. At the 

hearing, Noelle Miller, an employee of Pennsylvania Counseling Services, 

testified. Miller was specifically working with D.M. as a behavioral aide 

approximately twenty-five to thirty hours per week in school and five hours 

per week at home. Miller explained that she was standing at the bottom of 

the sliding board. She saw Appellant instruct the children to use the slide 
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properly. She also saw Appellant place her arm across the slide to stop the 

children from going down head-first, but remove her arm once the children 

were in a sitting position. N.T., 4/8/15, at 18. Miller opined that D.M. was 

becoming upset by Appellant’s correction and therefore hit Appellant. Id. at 

20. She also stated that she thereafter saw that Appellant “reached over 

then and hit him back as he was going down the slide.” Id. at 21. 

However, Miller admitted that she did not know what Appellant’s 

reaction was to D.M.’s strike:

I’m not sure [about Appellant’s reaction], my focus was 

mainly on [D.M.], and that kind of thing. I can’t—I wasn’t 

inside her head to know what her exact reaction was. 

Id. Further, Miller acknowledged that she did not actually see the contact 

between Appellant and D.M.:

Q. Did you see [Appellant] connect with his ear?

A. No, my focus was after this all occurred just making 

sure that I handled it the way the PCS requires me to 

handle them.

Id. at 22-23. In addition, on redirect examination, Miller could not provide 

any further description of Appellant’s positioning after D.M. struck her:

Q. So when [D.M.] was coming down the slide and he hit 

[Appellant], he kept going?

A. Yes.

Q. And when she hit him which hand did she use?

A. Her right hand.
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Q. Did she need to turn to do that to hit him or did she 

stay in the same position?

A. Standing she could stay in the same position so that as 

he was going down it was her right hand that would reach 

him.

Q. Okay, did you see her move her body, not what 

happened to her head, but her body after he hit her? Did 

she turn in his direction or away from him, or some other 

way?

A. You know what, I don’t remember. 

Id. at 35. 

Appellant also testified at the hearing. She claimed that any contact 

she had with D.M., after he struck her on the slide, was accidental:

Q. Okay, and when [D.M.] came down on the slide on his 

bottom what happened?

A. He came down and he punched me in my eye, in my left 

eye, I flew back and then I flew forward, and the side of 

my face hit the side of the slide, hit the side of the slide, 

but my hands connected with him as he went down the 

sliding board.

Q. Okay, and when you say your hands connected with 

him as he went down the sliding board was that-how long 

was that after you were struck?

A. After-less than a couple of seconds. After I hit the side 

of the sliding board my hand went up in the air.

Q. So almost immediately?

A. Yes.

Id. at 64-65. 

Regarding her intent, Appellant testified as follows:
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Q. Okay, and did you intend to strike [D.M.]?

A. No.

Q. Did you have any ill will toward [D.M.]?

A. No.

Q. Did you have any anger with [D.M.]?

A. No.

Q. Did you always have a good relationship with [D.M.]?

A. Yes.

Id. 

The Magisterial District Court found Appellant guilty of harassment. 

However, regarding Appellant’s intent the court stated:

I’m not sure this is going to be one for the Appeals Court 

as to what they feel happened with the intent, the 

intentional act that’s the one piece that was missing in this 

whole thing, the intentional act and I didn’t—I know it’s in 

there, but I didn’t see it, but you can take this up to the 

Appeals Court.

Id. at 80. 

On April 8, 2015, the Magisterial District Court sentenced Appellant to 

pay a fine of three hundred dollars, plus court costs. Appellant filed a timely 

appeal to the Berks County Court of Common Pleas. The matter was 

scheduled for a de novo trial on July 9, 2015. However, by agreement of the 

parties, the transcript of the Magisterial District Court hearing was the only 

submitted evidence. After the trial court had an opportunity to review the 

transcript, the court affirmed Appellant’s harassment conviction on July 10, 
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2015. Shortly thereafter, on July 27, 2015, the court also sentenced 

Appellant to pay a fine of three hundred dollars, plus court costs. 

The instant appeal followed. Appellant filed a timely court-ordered 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial 

court filed a Pa.R.A.P. 1925(a) opinion. The trial court specifically 

determined that Miller’s testimony, as set forth in the transcript of the 

Magisterial District Court hearing, was credible, while Appellant’s explanation 

of the incident was not credible.2 Trial Court’s Rule 1925(a) Op. at 4-5. 

Appellant raises a single issue for our review:

Whether the evidence of record was insufficient to 

sustain the trial court’s guilty verdict on the 

summary offense of Harassment under [18 Pa.C.S. § 

2709(a)(1)], on the basis that the Commonwealth 

failed to prove beyond a reasonable doubt that the 

Appellant struck, shoved, kicked or otherwise 

subjected the minor child to physical contact with the 

intent to annoy, harass or alarm him?

Appellant’s Brief at 5.

While Appellant does not dispute that her hand contacted D.M., she 

argues that the evidence presented was insufficient to establish that she had 

the requisite mens rea necessary for a harassment conviction pursuant to 18 

Pa.C.S. § 2709(a)(1). Specifically, Appellant claims that the evidence did 

 

2 We note that because the only evidence considered was the transcript of 

the Magisterial District Court Hearing, the trial court’s credibility 

determinations were based exclusively upon the cold record. 
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not prove that she had the intent to “annoy, harass or alarm” D.M. We are 

constrained to agree.

We begin by noting that “[o]ur standard of review from an appeal of a 

summary conviction heard de novo by the trial court is limited to a 

determination of whether an error of law has been committed and whether 

the findings of fact are supported by competent evidence.” 

Commonwealth v. Reigel, 75 A.3d 1284, 1286-87 (Pa. Super. 2013) (en

banc) (citation omitted). Further, the trial court’s adjudication will not be 

disturbed absent a manifest abuse of discretion. Id.

Also pertinent to the instant analysis is our standard of review 

regarding a sufficiency of the evidence claim: 

The standard we apply in reviewing the sufficiency of the 

evidence is 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. In 

applying the above test, we may not weigh the evidence 

and substitute our judgment for [that of] the fact-finder. 

In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the trier of fact 

while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part 

or none of the evidence. 
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Commonwealth v. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)

(citations omitted). We specifically note that when the evidence presented 

is insufficient to support a conviction, the proper remedy at law is an arrest 

of judgment not a new trial. Commonwealth v. Vogel, 461 A.2d 604, 607 

(Pa. 1983). 

Further, “[a] person commits the crime of harassment when, with 

intent to harass, annoy or alarm another, the person: . . . strikes, 

shoves, kicks or otherwise subjects the other person to physical contact, or 

attempts or threatens to do the same[.]” 18 Pa.C.S. § 2709(a)(1) 

(emphasis added). 

In order to meet its burden of proof under this section, the 

Commonwealth must “prove [the] appellant had the intent to harass, annoy 

or alarm.” Commonwealth v. Wheaton, 598 A.2d 1017, 1020 (Pa. Super. 

1991). “Anything less than a showing of intent is insufficient.” Id. (citation 

omitted); accord Commonwealth v. Battaglia, 725 A.2d 192, 194 (Pa. 

Super. 1999) (holding that the evidence was insufficient to support the 

petitioner’s harassment conviction pursuant to 18 Pa.C.S. § 2709(a)(1) 

where the context of the petitioner’s offensive comments and language “was 

responsive, not provocative” and thus the petitioner did not have the 

requisite intent required for conviction under the statute). “An intent to 

harass may be inferred from the totality of the circumstances.” 
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Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (citation 

omitted).

In the case sub judice, we conclude that the Commonwealth did not 

meet its burden regarding Appellant’s intent. Appellant, a long-term 

employee of the Reading School District, contends that she inadvertently 

struck D.M., due to the physical reaction she experienced as a result of the 

blow to the face she received. As the trial court concluded, Miller was able 

to testify definitively that Appellant did strike D.M. with her hand. Appellant 

does not deny that this contact occurred. However, the trial court relied 

exclusively on the testimony of Miller to infer that Appellant intended to 

alarm D.M. when she struck him. Trial Court Op., at 4-5. Miller was unable 

to attribute such intent to Appellant. Indeed, she specifically declined to do 

so stating, “I wasn’t inside her head to know what her reaction was.” N.T. 

at 21. Further, Miller offered no other indicia of Appellant’s state of mind at 

the time of the incident, noting that her focus was on D.M., not Appellant. 

Id. at 35. 

Accordingly, even when viewing all the evidence in the light most 

favorable to the Commonwealth as the verdict winner, See Vargas, 108 

A.3d at 867, we are constrained to hold that the evidence was insufficient to 

establish that Appellant intended to “harass, annoy or alarm” D.M. as 

required under 18 Pa.C.S. § 2709(a)(1). See Battaglia, 725 A.2d at 194. 

Thus, we hold that the evidence was insufficient to sustain Appellant’s 
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summary conviction of harassment and we reverse her judgment of 

sentence.

Judgment of sentence reversed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/17/2016