J-S89022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FREDERICK MARION BARTON, JR.

Appellant No. 667 EDA 2016

Appeal from the Judgment of Sentence January 22, 2016

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0002373-2015

BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.: FILED APRIL 26, 2017

Frederick Marion Barton, Jr. appeals from the January 22, 2016 

judgment of sentence entered in the Chester County Court of Common Pleas 

following his bench trial conviction for the summary offense of harassment.1 

We affirm.

The trial court set forth the following factual history:

In this case, the evidence showed that the owner of the 

building where [Barton] resided advised all tenants in May 

2015 that they had to vacate the premises by June 30, 

2015. Despite being aware of this, [Barton] did not leave 

his apartment. All other tenants had vacated the building 

by June 30, 2015. The locks to all doors, including 

[Barton’s], were changed on July 1, 2015. [Barton] still 

did not leave. He spoke to Rochelle Jones, who used to be 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2709(a)(1).
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the building manager for the building to see if he could 

stay longer, but they were not able to come to an 

agreement. On July 3, 2015, Vincent Taliercio, who was 

the building manager at the time, went to [Barton’s] 

apartment to try to work something out with him. When 

he got to [Barton’s] apartment, he saw a note on the door 

that read “Will be out soon.” He knocked on the door and 

advised who he was and why he was there. [Barton] was 

speaking to him through the door but did not open it. Mr. 

Taliercio used a key to open the door. As soon as he did 

so, [Barton] hit him with a sledgehammer. Mr. Taliercio 

pushed [Barton] back into the room, closed the door and 

called the police.

When Officer Lydell Nolt of Parksburg Police Department 

arrived at the scene, he saw the sledgehammer in the 

hallway. When he knocked on the door, [Barton] opened 

it and then slammed it in his face and locked it. Worried 

about his safety since he did not know what was going on 

behind the closed door, he used the key to open it. He 

was then able to get [Barton] out of the apartment with 

resistance.

Opinion Pursuant to Pa.R.C.P. 1925, 7/11/16, at 3 (“1925(a) Op.”).

On January 22, 2016, following a one-day bench trial, the trial court 

found Barton guilty of harassment and not guilty of disorderly conduct.2 

That same day, the trial court sentenced Barton to 45 to 90 days’ 

incarceration, with credit for time served. 

Barton raises the following issue on appeal:

Whether the evidence was sufficient to prove that [Barton] 

intended to “harass, annoy, or alarm” Vincent Taliercio 

when Mr. Barton used a sledgehammer against Mr. 

Taliercio when Mr. Taliercio opened the door to Mr. 

Barton’s apartment?

____________________________________________

2 18 Pa.C.S. § 5503(a)(1).
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Barton’s Br. at 4.

We apply the following standard when reviewing a sufficiency of the 

evidence claim: 

[W]hether 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 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 [finder] 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. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting 

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)) (some 

alterations in original).

A person is guilty 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). “An intent to harass may be inferred 

from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 
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719, 721 (Pa.Super. 2013) (quoting Commonwealth v. Lutes, 793 A.2d 

949, 961 (Pa.Super. 2002)).

Barton contends that the Commonwealth failed to establish that he 

had an intent to “harass, annoy or alarm” Taliercio when he struck him.3 

Barton maintains that the evidence established that he struck Taliercio 

because he “was angry or upset” as Taliercio, whom he did not know, had 

opened Barton’s door. Barton’s Br. at 16-17.

In Commonwealth v. Blackham, 909 A.2d 315, 317, 319 (Pa.Super. 

2006), this Court concluded there was sufficient evidence of physical contact 

with intent to harass, annoy, or alarm where, after observing an altercation 

between the victim and other children, the appellant grabbed the victim’s 

arm, tugged on the victim’s arm as they went up the street, and grabbed the 

back of the victim’s neck. Similarly, in Commonwealth v. Kirwan, 847 

A.2d 61, 63-64 (Pa.Super. 2004), this Court found sufficient evidence that 

the appellant acted with an intent to alarm where, as he was trying to leave 

the marital residence, the appellant lifted his wife and threw her to the 

ground.

____________________________________________

3 Barton concedes that the evidence established that he subjected 

Taliercio to physical contact. Barton’s Br. at 12. Although Taliercio testified 

that the injuries for which he sought medical attention were to his back, 

from when he pushed Barton back into the room, he also testified that the 

sledgehammer made contact with the front of his hand. N.T., 1/22/16, at 

14.
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Here, the Commonwealth presented sufficient evidence to support the 

conviction, including that Barton remained in the apartment after receiving 

notice that his lease was terminated; Barton placed a note on his door 

stating: “Will be out soon”; Taliercio identified himself as the building 

manager and explained why he was at the door; and Barton swung a 

sledgehammer and hit Taliercio when he opened door. Although Barton 

presented evidence that he struck Taliercio because Taliercio, whom Barton

did not know, opened the door to Barton’s apartment, the court as factfinder was free to credit the testimony presented by the Commonwealth. 

See Best, 120 A.3d at 341. We conclude that a fact-finder could find that 

the Commonwealth established beyond a reasonable doubt that Barton had 

an intent to harass, annoy, or alarm Taliercio. See Blackham, 909 A.2d at 

319; Kirwan, 847 A.2d at 63-64.

Barton’s reliance on Commonwealth v. Battaglia, 725 A.2d 192 

(Pa.Super. 1999), is misplaced. In Battaglia, a police officer saw the 

appellant blowing a “cloud” of leaves from an apartment building lawn into 

the street. 725 A.2d at 193. When asked to stop blowing the leaves into 

the street, the appellant complied and collected the leaves from the road. 

Id. The appellant, however, refused to clean leaves from a neighbor’s yard 

across the street, and eventually said he was going to “fucking sue the 

police” for bothering him. Id. The police officer arrested the appellant. Id. 

At the police station, the appellant grabbed a pen from an officer. Id. The 

appellant was charged with harassment under 18 Pa.C.S. § 2709(a)(3), 
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which requires that the Commonwealth establish that the defendant 

“engage[d] in a course of conduct or repeatedly commit[ted] acts which 

alarm or seriously annoy such other person and which serve no legitimate 

purpose.” The alleged course of conduct included: stating he was going to 

“fucking sue” the police, grabbing a pen from a police officer’s hand, and 

refusing to remove leaves from a neighbor’s lawn after being directed to by 

a police officer. Id. at 194. This Court determined that the Commonwealth 

failed to present sufficient evidence of harassment. Id. We found that the 

appellant’s comment that he was going to sue the police was “a response to 

a perceived harassment,” and found the evidence did not establish the 

comment was of a “non-legitimate nature.” Id. Next, we found that the 

physical contact of touching the police officer’s hand was de minimis, and 

the Commonwealth failed to establish the appellant grabbed the pen to 

harass, annoy or alarm the officer. Id. at 195. Finally, we found that the 

police officer’s authority to require the appellant to rake a neighbor’s yard 

was questionable and noted that there was no proof the appellant refused 

with an intent to harass, annoy, or alarm. Id. 

The appellant in Battaglia was charged with a different section of the 

harassment statute than Barton – which required the Commonwealth to 

prove a course of conduct rather than physical contact. Further, Battaglia
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is factually distinguishable – including that, unlike grabbing a pen, striking 

someone with a sledgehammer is not de minimis.

4

In sum, we conclude the Commonwealth presented sufficient evidence 

that Barton struck Taliercio with an intent to harass, annoy, or alarm. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/26/2017

____________________________________________

4 Barton’s reliance on Commonwealth v. Showalter, 418 A.2d 580 

(Pa.Super. 1980), also is misplaced. In Showalter, the trial court had 

instructed the jury on aggravated assault, simple assault, and assault 

committed while in a fight or scuffle, and the jury convicted the appellant of 

simple assault. 418 A.2d at 582. Unlike the issue raised in this case, the 

Showalter Court did not address whether sufficient evidence supported a 

harassment conviction. Rather, the issue on appeal was whether the court 

erred in failing to instruct the jury as to harassment. The appellant claimed 

that harassment was a lesser-included offense of assault and that the trial 

court erred by not instructing the jury. Id. This Court found that the trial 

court did not err because neither version of the events indicated that the 

appellant acted with an intent to harass, annoy, or alarm the victim. Id.