J-S32024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

RICHARD P. ROATCHE

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2370 EDA 2019

Appeal from the Judgment of Sentence Entered July 10, 2019

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0006705-2018

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED: MAY 3, 2021

Appellant, Richard P. Roatche, appeals from the judgment of sentence 

entered in the Montgomery County Court of Common Pleas, following his 

bench trial convictions for harassment and disorderly conduct.1 We affirm.

2

 

The relevant facts and procedural history of this appeal are as follows. 

At trial, the Commonwealth presented evidence that 

[Appellant] had an altercation with his neighbor, Abraham 

Hittle, regarding their adjoining properties. While Mr. Hittle 

was on a riding mower, mowing his lawn and the lawn of a 

neighboring property, [Appellant] approached and 

threatened Mr. Hittle with a tomato stake. After leaving the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2709(a)(1), 5503(a)(1), respectively. 

2 On October 7, 2020, we stayed our disposition of this case pending this 

Court’s decision in Commonwealth v. Lopez, 2021 PA Super 51 (filed March 

23, 2021) (en banc). Now that this Court has issued its decision in Lopez, 

we lift the stay order. 
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altercation on foot and walking back to his property, Mr. 

Hittle called the police to report the incident. 

The area of the neighboring property being mowed by Mr. 

Hittle abuts [Appellant’s] property. On the date in question, 

the grass cuttings created from Mr. Hittle’s lawn mower 

were being displaced onto [Appellant’s] property and into 

his garden. [Appellant] indicated to Mr. Hittle that he did 

not want the grass cuttings on his property, and the 

altercation ensued, resulting in [Appellant] [w]ielding a 

tomato stake at Mr. Hittle. There is a lengthy history of 

animosity and a need for police involvement with these two 

neighbors. 

(Trial Court Opinion, filed 10/4/19, at 1-2) (internal record citations omitted). 

The court conducted a one-day bench trial on July 10, 2019, finding 

Appellant guilty of harassment and disorderly conduct. Immediately following 

trial, the court sentenced Appellant to ninety (90) days’ probation for 

harassment, plus a consecutive term of ninety (90) days’ probation for 

disorderly conduct. The court also ordered Appellant to pay court costs and 

have no contact with Mr. Hittle. Following the imposition of sentence, 

Appellant’s counsel asked the court to consider waiving the payment of court 

costs, because Appellant’s “only source of income is retirement.” (N.T. Trial, 

7/10/19, at 89). The court responded, “This is what I will do, if he doesn’t 

have any problems or he doesn’t violate in the six months I will waive the 

costs but not until then.” (Id. at 89-90). 

Appellant did not file post-sentence motions. Instead, Appellant timely 

filed a notice of appeal on August 8, 2019. On August 13, 2019, the court 

ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors 
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complained of on appeal. After requesting an extension, which the court 

granted, Appellant timely filed his Rule 1925(b) statement on September 12, 

2019. 

Appellant now raises two issues for our review: 

Did the sentencing court err by conditioning a waiver of 

supervision costs on [Appellant’s] future compliance with 

conditions of probation? 

Was evidence sufficient to establish that [Appellant] had the 

requisite intent required to qualify a crime as harassment? 

(Appellant’s Brief at viii). 

In his first issue, Appellant contends that a sentencing court must 

impose a “supervision fee” on a defendant who receives a probationary 

sentence, unless the court determines that the defendant is unable to pay. 

Appellant insists “the only factor relevant to a determination of waiver of 

supervision fees is a person’s ‘present inability to pay.’” (Id. at 8) (quoting 

18 P.S. § 11.1102(c)). As such, Appellant argues that the court imposed an 

illegal sentence by conditioning the waiver of supervision fees on Appellant’s 

future compliance with the terms of his probation. 

In addition to his argument regarding the legality of his sentence, 

Appellant also challenges the discretionary aspects of the sentence. 

Specifically, Appellant claims his “future compliance with probation is in no 

way relevant to a determination of his ability to pay supervision fees.” (Id.

at 9). Appellant maintains the court relied upon this impermissible factor in 

fashioning his sentence, and the sentence could be vacated on this basis 
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alone. Appellant also asserts that the court compounded its error by failing 

to “provide any information regarding what the actual amount of the imposed 

costs would be.” (Id.). Appellant concludes this Court must vacate his 

judgment of sentence and remand the matter for resentencing. We disagree. 

“A claim that implicates the fundamental legal authority of the court to 

impose a particular sentence constitutes a challenge to the legality of the 

sentence,” which is non-waivable where the reviewing court has jurisdiction. 

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013). “If no 

statutory authorization exists for a particular sentence, that sentence is illegal 

and subject to correction.” Id. Generally, a claim that a court lacks authority 

to impose costs constitutes a challenge to the legality of sentence. 

Commonwealth v. Garzone, 993 A.2d 306 (Pa.Super. 2010), affirmed, 613 

Pa. 481, 34 A.3d 67 (2012). “We review the legality of a sentence [under a] 

de novo standard. Our scope of review is plenary.” Commonwealth v. 

Smith, 210 A.3d 1050, 1062 (Pa.Super. 2019), appeal denied, ___ Pa. ___, 

218 A.3d 1199 (2019) (internal citations omitted). 

Section 11.1102(c) governs the imposition of probation supervision fees 

as follows: 

§ 11.1102. Costs for offender supervision programs

* * *

(c) Court.—The court shall impose as a condition of 

supervision a monthly supervision fee of at least $25 on any 

offender placed on probation, parole, accelerated 

rehabilitative disposition, probation without verdict or 
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intermediate punishment unless the court finds that the fee 

should be reduced, waived or deferred based on the 

offender’s present inability to pay. Of the fee collected, 50% 

shall be deposited into the County Offender Supervision 

Fund established in each county pursuant to this section, 

and the remaining 50% shall be deposited into the State

Offender Supervision Fund established pursuant to this 

section. 

18 P.S. § 11.1102(c). 

Additionally, a claim that a sentence is based on impermissible factors 

constitutes a challenge to the discretionary aspects of sentencing. 

Commonwealth v. Shugars, 895 A.2d 1270 (Pa.Super. 2006). Challenges 

to the discretionary aspects of sentencing do not entitle an appellant to an 

appeal as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 

2000). Prior to reaching the merits of a discretionary sentencing issue:

[W]e conduct a four part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 

902 and 903; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s 

brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether 

there is a substantial question that the sentence appealed 

from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b). 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

Instantly, the court announced the imposition of the following sentence: 

Here is the sentence; count two, harassment, 90 days of 

probation to date from today. Count three, disorderly 

conduct, 90 days of probation running consecutive to count 

two. You’re to have no contact with Abraham Hittle. You’re 

to pay court costs. And unfortunately I really don’t believe 
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there are any other conditions I can place upon you. 

(N.T. Trial at 89) (emphasis added).

3

 Thereafter, Appellant’s attorney 

specifically argued that court costs should be waived due to Appellant’s limited 

financial resources. Appellant’s attorney did not specifically mention the

probation supervision fee. (See id. at 89-90). The court agreed to revisit the 

issue of waiving court costs in six months, and counsel stated, “I will make 

that note.” (Id. at 90). 

Contrary to Appellant’s argument, the court did not condition the waiver 

of supervision fees on Appellant’s future compliance with the terms of his 

probation. Rather, the parties discussed the imposition of court costs only. 

Thus, to the extent Appellant argues that the court somehow violated Section 

11.1102(c), his claim is without merit. Regarding his argument that the 

sentencing court relied upon impermissible factors, Appellant did not preserve 

this issue at sentencing or in a motion to reconsider and modify sentence.4 

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3 The court did not mention the payment of the probation supervision fee, and 

the certified record does not include a corresponding written sentencing order. 

Nevertheless, a copy of the trial court’s docket, which is attached to 

Appellant’s notice of appeal, confirms that the “monthly offender supervision 

fee” was part of Appellant’s sentence. See Joseph v. Glunt, 96 A.3d 365 

(Pa.Super. 2014), appeal denied, 627 Pa. 774, 101 A.3d 787 (2014) 

(explaining that, even in absence of written sentencing order, criminal docket 

and sentencing hearing transcript can be used to confirm imposition of valid 

sentence).

4 Moreover, to the extent Appellant’s counsel requested the waiver of court 

costs due to financial hardship at the sentencing hearing, we reiterate that 

there is no requirement that a court make an ability-to-pay determination 

before imposing court costs at sentencing. See Lopez, supra. 
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See Evans, supra. The record also belies Appellant’s claim the court did not 

provide the actual amount of the court costs, because the trial court docket 

attached to the notice of appeal forwarded to this Court lists the amount of 

each cost at issue. On this record, Appellant is not entitled to relief on his first 

issue. 

In his second issue, Appellant acknowledges the Commonwealth’s 

evidence that he approached Mr. Hittle with a tomato stake and made 

threatening comments. Nevertheless, Appellant insists that the 

Commonwealth did not establish that he made the comments with the intent 

to harass Mr. Hittle. Appellant argues that he had a long history of hostile 

encounters with Mr. Hittle, and Mr. Hittle was the aggressor on many 

occasions. In light of these prior encounters, including some that resulted in 

criminal charges being filed against Mr. Hittle, Appellant maintains he 

reasonably feared for his own safety during the instant encounter. Under 

these circumstances, Appellant concludes the Commonwealth presented 

insufficient evidence to support his harassment conviction. We disagree. 

Our standard of review for sufficiency claims is as follows:

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 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 
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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. 

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal 

denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v. 

Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)). 

The Pennsylvania Crimes Code defines the offense of harassment, in 

pertinent part, as follows: 

§ 2709. Harassment

(a) Offense defined.―A person commits the crime of 

harassment when, with intent to harass, annoy or alarm 

another, the person: 

(1) strikes, shoves, kicks or otherwise subjects 

the other person to physical contact, or attempts or 

threatens to do the same[.]

18 Pa.C.S.A. § 2709(a)(1). 

With the enactment of 18 Pa.C.S. [§] 2709, our legislature 

has sought to prohibit such conduct, including speech, which 

is not Constitutionally protected and which is intended to 

alarm or seriously annoy another person. The purpose of 

the [legislation], undoubtedly, was to extend to the 

Individual the protections which have long been afforded the 

general public under disorderly conduct and breach of the 

peace statutes. 

Commonwealth v. Duncan, 363 A.2d 803, 807 (Pa.Super. 1976). “An 
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intent to harass may be inferred from the totality of the circumstances.” 

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa.Super. 2013) (quoting 

Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa.Super. 2002)). 

Instantly, Mr. Hittle testified that he started to mow the grass, and 

Appellant “proceeded to come to me with a stake and was swinging it eight or 

nine times just missing my head.” (N.T. Trial at 13). Mr. Hittle explained that 

Appellant swung the stake “like a baseball bat,” and “at one point he stopped 

that stick right at my ear and said I will fucking kill you.” (Id. at 14-15). 

Here, Appellant’s verbal threat of harm demonstrated the requisite intent to 

support the harassment conviction. See Commonwealth v. Duda, 831 A.2d 

728 (Pa.Super. 2003) (holding Commonwealth presented sufficient evidence 

to support harassment conviction where defendant’s use of obscene language 

and death threats demonstrated that his phone calls to victim were made with 

intent to harass). Thus, Appellant is not entitled to relief on his second issue. 

See Tucker, supra. Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/3/21