J-S42019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHANE FLEXER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 7 EDA 2020

Appeal from the Judgment of Sentence Entered October 3, 2019

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-CR-0001533-2019

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED JANUARY 14, 2021

Appellant, Shane Flexer, appeals from the judgment of sentence entered 

on October 3, 2019 in the Criminal Division of the Court of Common Pleas of 

Lehigh County, as made final by the denial of post-sentence motions on

November 25, 2019. We affirm.

The trial court aptly summarized the facts and procedural history in this 

case as follows.

[P.C.], the victim, was friends with [Appellant] for several years 

and invited him to live in her basement while she attempted to 

take care of him in 2012. [P.C.] was a wood carver by trade and 

helped teach [Appellant] some of the craft. At some point they 

shared an intimate romantic relationship. However, [P.C.] began 

to feel uncomfortable with the relationship, believed that 

[Appellant] was becoming increasingly abusive, and she 

attempted to dislodge him in 2015. For several months prior to 

[Appellant’s] departure, [P.C.] had told [Appellant] that the 

relationship was over. [Appellant] remained in the home as he 

attempted to get back on his feet. [P.C.] moved on and began a 

new relationship.
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Around September of 2015, [Appellant] finally left the house after 

[P.C.’s] brother convinced [Appellant] that he had to leave. 

[Appellant] moved to a nearby boarding house in [P.C.’s] 

neighborhood and walked by her home frequently. Although 

[P.C.] expressed a desire for no further contact, she was not free 

of [Appellant] until he moved to Georgia around 2017. [P.C.]

expressed a desire for no contact directly with [Appellant] many 

times. Nevertheless, [Appellant] continued in his attempts to 

contact [P.C.]. At this point, [P.C.] ignored [Appellant’s] attempts 

at contact by not responding.

In December of 2018, [Appellant’s] attempts to contact [P.C.] 

escalated. [P.C.] received [electronic mail messages], repeated 

[tele]phone calls, and a letter from [Appellant]. [P.C.] wrote 

“rejected” on the letter and sent it back to [Appellant]. 

[Appellant] resent the letter and, in essence, informed [P.C.] that 

he refused to be rejected. [Appellant] called [P.C.] over 80 times 

in the month of December [2018]. [P.C.] responded by going to 

the police. A January 3, 2019 report verifies that law enforcement 

was notified and [Appellant] was put on notice he should stop 

contacting [P.C.].

Nevertheless, [Appellant] continued his messages from December 

of 2018 through March of 2019. [P.C.] did not respond, other 

than to reject the messages, until she answered a [telephone] call 

and specifically informed [Appellant] to “stop calling.” [P.C.] cut 

off further communication to her house by having her service 

provider block further calls, and personally blocked [Appellant] on 

her [cellular telephone]. [Appellant] was not arrested at the time 

and remained in Georgia. [Appellant] continued contact 

regardless, and [P.C.] received voicemails, videos, and [electronic 

mail messages] in January and February [of 2019]. Between 

December of [2018] and April of 2019, [Appellant] called the 

victim over 250 times. In addition to the hundreds of [telephone] 

calls between December and April, [Appellant] sent the victim 

multiple [electronic mail messages]. In a QuickTime video

attached to [electronic messages], sent approximately three times 

on January 26, 2019, [Appellant] repeatedly says “I like you.”

In early March of 2019, [Appellant] attempted in-person contact. 

[P.C] was attending a craft show and set up as a vendor for three 

days in Richmond, Virginia. [Appellant] left his home in Georgia 

to track his victim down. On the second day, after the show[,] 
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the victim walked to her car and was confronted by [Appellant]. 

[P.C.] screamed at [Appellant] and told him to leave her alone and 

stay away. [P.C.] asked a passing man for help, was able to get 

in her car, and left. Again, the incident was reported to the police. 

She obtained a temporary Protect[ion] from Abuse Order [“PFA”]

before she left Virginia.

On April 3, 2019, [Appellant], again, left his residence in Georgia 

and drove approximately 14 hours to surprise [P.C.] at her 

residence [in] Upper Milford Township, Lehigh County, 

Pennsylvania. [P.C.] found [Appellant] waiting outside her front 

door. [P.C.] became scared, locked the door, and called [the] 

police. [P.C.] testified that she hid in the basement, grabbed a 

nearby can of bug spray, and stayed on the [tele]phone until the 

[s]tate [t]roopers arrived.

Pennsylvania State Trooper Mirzet Sadikovic was the first 

responder and was joined shortly by Trooper Jackson.

[1]

 Trooper 

Sadikovic instructed [Appellant] that [P.C.] wanted him to leave. 

[Appellant] insisted that he hear it from [P.C.] and relayed that 

once he did he would leave. When [P.C.] came out, in the 

presence of the [t]roopers, [Appellant] began asking [P.C.] 

strange questions to the effect of “do you know I like you, do you 

like me, do you know how much I like you.” In response, [P.C.] 

told [Appellant] she did not like him anymore and to leave her 

alone.

After witnessing the interaction between [Appellant] and [P.C.], 

Trooper Sadikovic grasped the seriousness of the situation. 

Trooper Sadikovic told [Appellant] to leave immediately and 

escorted [P.C.] to obtain a [PFA]. Trooper Sadikovic instructed 

[P.C.] to follow him to the on-call Magisterial District Judge. 

Trooper Jackson stayed on scene in case [Appellant] came back 

or tried to enter the home. On the way to the [MDJ’s] office, 

Trooper Sadikovic noticed [Appellant’s] van parked by the side of 

the road. [Appellant] left his parked position and began to follow 

[P.C.’s] vehicle. In response, Trooper Sadikovic pulled over into 

a church parking lot in case there was some type of bizarre 

coincidence. However, [Appellant] continued to follow [P.C.] into 

the empty parking lot. Trooper Sadikovic quickly motioned for 

____________________________________________

1 Trooper Jackson’s first name does not appear in the transcript of Appellant’s 

trial.
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[P.C.] to leave so that he [could] position his cruiser safely behind 

her. When [P.C.] left the lot, [Appellant] continued to follow them.

Trooper Sadikovic radioed for backup and Trooper Jackson and 

Trooper David Angstadt responded. [The t]roopers created a 

blockade at a stoplight at Chestnut and Buckeye Road and 

detained [Appellant]. A dashcam video of Trooper Jackson’s 

motor vehicle recording (MVR) of the incident was played for the 

[trial court]. When [Appellant] was asked why he was following 

the victim after he was told to leave and threatened with arrest, 

he responded that he knew he shouldn’t [persist] but he was 

following his heart[.] 

Trial Court Opinion, 11/25/19, at 3-6 (original footnotes and record citations 

omitted).

Based on the foregoing facts, Appellant was charged on May 28, 2019 

with a misdemeanor offense of stalking (18 Pa.C.S.A. § 2709.1(A)(1)) and a 

summary offense of harassment (18 Pa.C.S.A. § 2709(A)(3)). After a record 

colloquy, Appellant elected to proceed pro se and the court appointed standby 

counsel. After an extension, the court convened trial on October 3, 2019 and 

found Appellant guilty of both charges. That same day, the court sentenced 

Appellant to 18 to 36 months’ imprisonment followed by two years of 

probation. The trial court appointed counsel for purposes of post-trial 

litigation and appeal. On October 11, 2019, Appellant filed a timely 

post-sentence motion challenging the sufficiency and weight of the evidence 

offered in support of his stalking conviction. By order and opinion, the court 

denied Appellant’s motion on November 25, 2019. 

Appellant filed a notice of appeal on December 17, 2019. Thereafter, 

Appellant, on January 27, 2020, filed a Pa.R.A.P. 1925(b) concise statement 
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of errors complained of on appeal pursuant to order of court. On January 28, 

2020, the court issued an order adopting its November 25, 2019 opinion as 

its Rule 1925(a) statement of reasons in support of the judgment challenged 

on appeal.

Appellant raises the following issues for our review.

Whether the evidence was sufficient to sustain [Appellant’s] 

conviction[] for stalking if [Appellant] failed to have the specific 

intent required by the statute?

Was the verdict against the weight of all the evidence in regards 

to the proof of whether or not [Appellant] was properly proven to 

have the necessary criminal intent to commit the crime of 

stalking?

Appellant’s Brief at 9.

In his first issue, Appellant asserts that the Commonwealth introduced 

insufficient evidence to prove that he possessed the necessary specific intent 

to establish the offense of stalking. While conceding that his actions may have 

been excessive or even inappropriate, Appellant maintains that the 

Commonwealth failed to show, beyond a reasonable doubt, that he acted with 

the intent to place P.C. in reasonable fear of bodily injury or intended to cause 

her substantial emotional distress. At best, Appellant claims that the evidence 

simply showed that he attempted to rekindle a romantic relationship with the 

victim or reach a satisfactory conclusion of their relationship.

Our standard of review regarding the sufficiency of the evidence is as 

follows:
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The standard we apply in reviewing the sufficiency of 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 may 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.

Commonwealth v. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002) 

(citations omitted).

The trial court reasoned as follows in rejecting Appellant’s challenge to 

the sufficiency of the evidence.

A person commits the crime of stalking when the person engages 

in a course of conduct or repeatedly commits acts toward another 

person, including following the person without proper authority, 

under circumstances which demonstrate either an intent to place 

such other person in reasonable fear of bodily injury or to cause 

substantial emotional distress to such other person. 18 Pa.C.S.A. 

§ 2709.1(A)(1). A person acts intentionally with respect to a 

material element of an offense when it is his conscious object to 

engage in conduct of that nature or to cause such a result. 18 

Pa.C.S.A. § 302(b)(1).

[Appellant] contends that he never intended a specific result of 

either reasonable fear of bodily injury or substantial emotional 

distress. There is no dispute that [Appellant] engaged in a course 

of conduct and repeatedly committed acts towards the victim. The 
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issue is whether the circumstances demonstrate an intent to cause 

the victim fear of bodily injury or substantial emotional distress. 

It is longstanding in this Commonwealth that “because a state of 

mind by its very nature is subjective, absent a declaration by the 

actor himself we can only look to the conduct and the 

circumstances surrounding it to determine [the] mental state 

which occasioned it.” Commonwealth v. O’Searo, 352 A.2d 30 

(Pa. 1976).

The Commonwealth’s evidence showed that the victim ended her 

relationship with [Appellant] and [Appellant] refused, and 

continued to refuse, to accept this fact. It seems clear to the 

[court, as factfinder,] that [Appellant] was on notice that his 

conduct was causing the victim substantial emotional distress but 

he chose to ignore the victim’s words and actions. The victim 

wanted no contact with [Appellant]. [Appellant] did not take “no” 

for an answer and was told directly by the victim to leave her 

alone.

[Appellant] disregarded all reasonable requests for no contact and 

escalated his conduct by following the victim. [Appellant] traveled 

across state lines to surprise and harass the victim. In one 

incident, the victim screamed for help at the sight of [Appellant]. 

These circumstances would place any reasonable person in fear or 

cause them substantial emotional distress. Moreover, [the court]

find[s] it particularly concerning that [Appellant] ignored specific 

police instruction to leave the scene and continued to follow both 

the victim and police to “follow his heart” [despite] the threat of 

arrest. The victim testified that she was scared and [Appellant] 

concede[d] he was aware of this fact. Therefore [the court finds] 

that the Commonwealth presented sufficient evidence of stalking.

Trial Court Opinion, 11/25/19, at 8-9.

We concur fully in the trial court’s assessment of Appellant’s sufficiency 

challenge. In essence, Appellant claims that the evidence of stalking must be 

insufficient because a lawful motivation could explain the actions proved at 

trial. Our standard of review is clear, however, that the facts and 

circumstances shown by the Commonwealth need not exclude every 
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possibility of innocence. For this reason, we agree that sufficient evidence 

supports Appellant’s stalking conviction and that he is not entitled to relief on 

his first claim.

Appellant’s second claim asserts that, even if sufficient evidence 

supported his stalking conviction, the verdict was nonetheless against the 

weight of the evidence. Specifically, Appellant maintains that “a fair reading 

of all of the testimony supports a finding that [Appellant] was acting in a 

mistaken attempt to either rekindle a romance or to otherwise settle his 

relationship with the victim in a manner that would provide both parties with 

a proper piece of mind.” Appellant’s Brief at 12.

Our standard and scope of review over a claim alleging that the verdict 

is contrary to the weight of the evidence is as follows.

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. Rather, the role of 

the trial judge is to determine that notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny justice. 

It has often been stated that a new trial should be awarded when 

the jury's verdict is so contrary to the evidence as to shock one's 

sense of justice and the award of a new trial is imperative so that 

right may be given another opportunity to prevail.

An appellate court's standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review 

applied by the trial court:

Appellate review of a weight claim is a review of the exercise 

of discretion, not of the underlying question of whether the 

verdict is against the weight of the evidence. Because the 
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trial judge has had the opportunity to hear and see the 

evidence presented, an appellate court will give the gravest 

consideration to the findings and reasons advanced by the 

trial judge when reviewing a trial court's determination that 

the verdict is against the weight of the evidence. One of the 

least assailable reasons for granting or denying a new trial is 

the lower court's conviction that the verdict was or was not 

against the weight of the evidence and that a new trial should 

be granted in the interest of justice.

This does not mean that the exercise of discretion by the trial court 

in granting or denying a motion for a new trial based on a 

challenge to the weight of the evidence is unfettered. In 

describing the limits of a trial court's discretion, [our Supreme 

Court has] explained:

The term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate conclusion 

within the framework of the law, and is not exercised for the 

purpose of giving effect to the will of the judge. Discretion 

must be exercised on the foundation of reason, as opposed 

to prejudice, personal motivations, caprice or arbitrary 

actions. Discretion is abused where the course pursued 

represents not merely an error of judgment, but where the 

judgment is manifestly unreasonable or where the law is not

applied or where the record shows that the action is a result 

of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (internal 

citations and quotations omitted).

After careful review and consideration of the certified record, the 

submissions of the parties, and the trial court’s opinion, we are satisfied that 

the court did not abuse its discretion in rejecting Appellant’s claim that his 

stalking conviction was against the weight of the evidence. Because the 

verdict does not shock the judicial conscious, we conclude that Appellant’s 

weight claim is meritless.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/14/2021