Com. v. Davis

• Citation: 737 A.2d 792
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Scott Alan DAVIS, Appellant.
• Decision Date: 25 August 1999
• Court: Superior Court of Pennsylvania

737 A.2d 792

COMMONWEALTH of Pennsylvania, Appellee, v. Scott Alan DAVIS, Appellant.

Superior Court of Pennsylvania.

Submitted June 28, 1999.

Filed August 25, 1999.

Nuria Sjolund, Asst. Public Defender, Easton, for appellant.

Jay W. Jenkins, Asst. Dist. Atty., Easton, for Com., appellee.

Before McEWEN, President Judge, CERCONE, President Judge Emeritus, and HESTER, J.

CERCONE, President Judge Emeritus:

¶ 1 This is a direct appeal from the judgment of sentence entered in the Court of Common Pleas of Northampton County after a jury convicted Appellant, Scott Alan Davis, on one count of stalking. 18 Pa.C.S.A. § 2709(b).¹ For the reasons that follow, we affirm. ¶ 2 In late December, 1997, the victims in this case, Kelly and Keith Kraycar, filed a written criminal complaint alleging that Appellant (Mrs. Kraycar's former husband) engaged in a course of conduct amounting to the crimes of harassment and stalking. According to the police report, the incidents so alleged were the culmination of years of domestic violence which resulted in more than one Protection from Abuse Order. The police report also noted that Appellant and Mrs. Kraycar were embroiled in a nasty and protracted custody battle in another county. The police arrested Appellant on January 7, 1998 and the matter proceeded to a jury trial before the Honorable James C. Hogan in July of that year.

¶ 3 At trial, Mrs. Kraycar testified that that she had known Appellant since she was twelve years old, and that two children were born of their marriage, Tara and Scottie. N.T. Trial, 7/14/98, at 13-14, 43. Mrs. Kraycar also stated that she separated from Appellant in February of 1995 because he was very abusive to her physically and mentally. Id. at 13-14. She testified that after she left him, Appellant telephoned her on a recurrent basis threatening to break her "f* * * * *g legs" and kill her because she was a "little bitch," a "whore," and a "slut." Id. at 14-16, 54.² Even after Mrs. Kraycar moved several times, obtaining an unlisted telephone number on each occasion, Appellant was able to learn her new telephone number and thus find her over and over again. Id. at 16, 18. Mrs. Kraycar eventually decided to disconnect the telephone and live without telephone service because she could not prevent Appellant from repeatedly contacting her and issuing death threats. Id. at 18. Appellant made many attempts to get Mrs. Kraycar's new address after each move, sometimes preventing her from seeing their children if she refused to disclose it. Id. at 24.

¶ 4 On many occasions, Mrs. Kraycar and her second husband, Keith, observed footprints and other signs that an unidentified person had been near their vehicle, or had tampered with their storm door or screen door in their absence. Id. at 19, 30. They feared that it was Appellant, because they had observed his vehicle parked outside their home on many occasions. Id. at 56. Mrs. Kraycar also stated on the record that she was unaware of any person other than Appellant who had issued death threats to her. Id. The Kraycars moved seven times in a two year period attempting to escape from Appellant and/or the unidentified intruder. Id. at 19.

¶ 5 On August 22, 1997, the Kraycars were walking on Scott Street in Carbondale with their five month old baby, who was in a stroller. Id. at 19. Appellant drove by the Kraycars three times in rapid succession: the first time, Appellant laughed and held up his middle finger at them; on the second passage, Appellant spat at them. Id. at 20. On the third round, Appellant aimed his vehicle at the Kraycars, hit the gas hard, and "came at" the victims very quickly. Id. Mr. Kraycar was forced to pick the stroller up and jump out of the vehicle's way in order to protect himself and the baby. Id. at 20.³

¶ 6 Mrs. Kraycar discussed several incidents involving the children which required her to request the intervention of police officers to protect either herself, Mr. Kraycar, or one of the children, or to force Appellant to relinquish the children into her custody. Id. at 22-23. She also stated that there were many times when she came to Appellant's home to pick up the children for visitation, but Appellant would not permit them to leave with her. Id. at 43. At one point, Mrs. Kraycar applied for, and was granted, a Protection from Abuse order on behalf of her children. Id. at 14, 54-56. Eventually, a judge of the Family Division of the Court of Common Pleas of Lackawanna County appointed a guardian ad litem to supervise the safety of Tara and Scottie, and to deal with Appellant's refusal to permit Mrs. Kraycar's attempts to visit them. Id. at 52.

¶ 7 Mrs. Kraycar testified that as a result of Appellant's constant threats to her and her family, she became terrified over simple things, like the unexpected ringing of her doorbell. Id. at 26, 47. She stated that she was afraid for the life of her baby when an unanticipated visitor rang the doorbell, and that she was tired of being so scared all the time. Id. at 27. Mrs. Kraycar also testified that the stress caused by Appellant's behavior caused her to suffer from panic and anxiety attacks, and that she had been forced to go into counseling to deal with the situation. Id. at 28-29.

¶ 8 Mr. Kraycar corroborated his wife's testimony in all essential aspects. Id. at 68-95, 100-108, 110-125 (testimony of Keith Kraycar). He stated that he now suffers from hypertension and anxiety as a result of Appellant's behavior. Id. at 80. Mr. Kraycar further testified that he is not physically afraid of Appellant on a "one-on-one" basis. However, he feared what Appellant was capable of doing with a motor vehicle and "everything else" that Appellant might do. Specifically, Mr. Kraycar said he was concerned for his own safety and feared for his family. Id. at 81-82.

¶ 9 Appellant's twelve year old daughter, Tara, testified that her father scared her when he was drinking. Id. at 127. She also feared him because of his "yelling and screaming" at her on an occasion when he tried to force her to disclose where her mother was living at the time. Id. at 127. Tara further stated that Appellant prevented her from seeing her mother, and that Appellant and his paramour forced her to hide in a cellar so that her mother could not find her. Id. at 127, 129. Appellant's nine year old son, Scottie, testified that he was scared of his dad because Appellant threw him against a house in retaliation for his desire to visit with his mother. Id. at 142, 143.⁴

¶ 10 On July 15, 1998, the jury found appellant guilty of one count of stalking. The Trial Court ordered a mental health evaluation and a pre-trial report. Judge Hogan conducted a sentencing hearing on September 18, 1998. On that date, the Trial Court sentenced Appellant to serve four (4) to forty-eight (48) months in the Northampton County Prison, to pay the costs of the prosecution and a one thousand dollar ($1,000) fine. N.T. Sentencing Hearing, 9/18/98, at 19. Judge Hogan additionally directed that upon parole, Appellant was prohibited from all contact with the victims in this case, whether by telephone or in person. He also recommended on the record that the Pennsylvania Board of Parole impose electronic surveillance and place Appellant on curfew so that he would be prohibited from leaving his residence after 6 p.m., and that intense supervision should continue throughout any term of parole. Id. at 19-20.

¶ 11 Appellant filed a timely motion requesting modification of sentence. The Trial Court denied relief on September 28, 1998. Appellant's timely notice of appeal followed on October 14, 1998. Represented by the same attorney who served as defense counsel at his trial, Appellant presents two issues for our consideration:

A. WHETHER THE TRIAL JUDGE ERRED IN ADMITTING EVIDENCE, AT TRIAL, OF DEFENDANT'S CRIMINAL CHARGE.

B. WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION BY NOT FOLLOWING THE SENTENCING PROCEDURE AS SET FORTH BY STATUTE AND CASE LAW.

Appellant's Brief at 3.

¶ 12 Appellant first contends that he was unfairly prejudiced by the admission of evidence concerning a past criminal charge which was not before the jury. Specifically, Appellant claims that it was error for the Trial Judge to permit the prosecutor to question a police officer concerning a criminal charge stemming from an incident that occurred in August of 1997.

¶ 13 The admissibility of evidence is a matter addressed to the discretion of the trial court and may be reversed on appeal only upon a showing that the court abused its discretion. Commonwealth v. Richter, 551 Pa. 507, 512, 711 A.2d 464, 466 (1998). Evidence of prior bad acts is generally not admissible if offered merely to show bad character or a propensity for committing bad acts. Id. Exceptions to this general proscription exist in special circumstances where the evidence is relevant for some other legitimate purpose and not merely designed generally to prejudice the defendant by showing him to be a person of bad character. Id. If such evidence is admitted, the trial court must instruct the jury as to the limited purpose for which they may consider the evidence of a defendant's prior bad acts. Id.

¶ 14 In the present case, Patrolman Dominick Andidora of the Carbondale Police Department testified that he had been acquainted with Appellant for several years. N.T. Trial, 7/15/98, at 12. He also stated that he was "somewhat" familiar with victim Kelly Kraycar. Id. Patrolman Andidora testified that both Keith and Kelly Kraycar came to the Carbondale police station on August 22, 1997. At that time, the Kraycars reported Appellant for reckless driving because he tried to hit them with his vehicle. Id. at 13. The following exchange then occurred:

Q. [By the prosecutor]: And, sir, based on what they told you, did you file any charges?

A. [By Patrolman Andidora]: Yes.

Q. And who did you file the charges against, sir?

A. Scott Davis.

Q. And what was the ultimate result of those

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