Com. v. Ostrosky

• Decision Date: 22 November 2006
• Citation: 909 A.2d 1224
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Jeremiah D. OSTROSKY, Appellee.
• Court: Pennsylvania Supreme Court

909 A.2d 1224

COMMONWEALTH of Pennsylvania, Appellant, v. Jeremiah D. OSTROSKY, Appellee.

Supreme Court of Pennsylvania.

Submitted February 28, 2006.

Decided November 22, 2006.

Michael Wayne Streily, Esq., Robert A. Willig, Esq., Pittsburgh, for Commonwealth of Pennsylvania.

Samuel John Cordes, Esq., Ogg, Cordes, Murphy & Ignelzi, L.L.P., Pittsburgh, for Jeremiah D. Ostrosky.

BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

OPINION

Justice BAER.

We granted review in this case to determine whether the Superior Court erred in reversing the trial court's judgment of sentence for Appellee Jeremiah Ostrosky's conviction of the offense of retaliation against a witness or victim, 18 Pa.C.S. § 4953(a) (hereinafter "retaliation statute").¹ The Superior Court concluded that the evidence presented by the Commonwealth was insufficient as a matter of law to sustain Ostrosky's conviction where, as here, Ostrosky, on one occasion, verbally threatened James and Andrea Foster, who were previously crime-victims of Ostrosky. For the reasons that follow, we affirm the Superior Court.

Sometime in the spring or summer of 2002, Ostrosky was ordered to pay restitution for damages that resulted when the Foster's vehicle was vandalized.² The damages to their vehicle totaled approximately $2,200. Thereafter, on September 20, 2002, Ostrosky, who was 18 years old at the time, encountered Mr. Foster at a Glassport Area High School football game. Mr. and Mrs. Foster were both present at the game and Mr. Foster was serving as a parent-chaperone to the high school band, as his son was a band member. The encounter began when Mr. Foster observed Ostrosky talking to band members during the time the high school football game was taking place. Mr. Foster approached Ostrosky and explained to him that band members are not permitted to talk during game time and that he, Ostrosky, should move on. After making a smart remark to Mr. Foster, Ostrosky complied with Mr. Foster's request and left the area where the band was assembled.

Approximately one hour later, Ostrosky returned to the band area and approached Mr. Foster. Mr. Foster saw Ostrosky, but said nothing to him at that time; Mr. Foster then left to use the restroom. When Mr. Foster returned from using the restroom, Ostrosky approached him again and began talking about the previous vandalism incident. Specifically, Ostrosky stated that he blamed Mr. Foster for his getting into trouble and said it was Mr. Foster's fault that he was required to pay $2,000 in restitution. Ostrosky then became belligerent and called Mr. Foster a "fat f____." Notes of Testimony, 6/16/03, (N.T.), at 18. He told Mr. Foster that he "should take [Mr. Foster's] fat ass out in the field and beat [him] up." Id.

At that point, Mr. Foster was not concerned with Ostrosky's comments and, in fact, found them to be funny. When Mr. Foster began laughing, Ostrosky told him "[y]ou ain't going to find this funny when I am slapping your wife around and ass f____ ing her." N.T. at 19. Mr. Foster no longer found Ostrosky funny and became concerned. He began looking around for help. Other people began walking up to Ostrosky and Mr. Foster, who were obviously involved in a verbal confrontation, and Mr. Foster asked that someone call the police. Mr. Foster was concerned particularly because of Ostrosky's threat directed at Mrs. Foster as he was unsure if Ostrosky would attempt to carry out such threat.³ Ostrosky then became louder and continued yelling at Mr. Foster "in [his] face." N.T. at 21. The incident ended when Mr. Foster walked away. At that time, the police arrived and confronted Ostrosky, who was arrested.⁴

Based on the foregoing incident, Ostrosky was charged with one count of violating the retaliation statute, 18 Pa.C.S. § 4953; two counts of terroristic threats, 18 Pa.C.S. § 2706; one count of disorderly conduct, 18 Pa.C.S. § 5503(a)(1-4); and two counts of harassment and stalking, 18 Pa.C.S. § 2709. Regarding the Commonwealth's allegation that Ostrosky violated the retaliation statute, the Commonwealth alleged that Ostrosky harmed the Fosters by making terroristic threats, engaging in disorderly conduct and harassing and stalking them, all unlawful acts, with the intent to retaliate against them for their role in the vandalism charges that were brought against him.

Following a two-day bench trial, the trial court convicted Ostrosky of all the charges. Regarding the charges pursuant to the retaliation statute, as is relevant here, the court specifically stated the following:

THE COURT: After reviewing my notes and, of course, listening to the testimony and weighing the credibility of the witnesses I have reached the following decision: That is that the Commonwealth has proven beyond a reasonable doubt that on September 20, 2002 Jeremiah Ostrosky did harm Jim Foster by unlawful action, including the act of threatening to assault him and his wife in retaliation for the Fosters being . . . the victim of a crime for which Mr. Ostrosky eventually paid restitution. . . .

Notes of Testimony, 6/17/03, at 50.

On August 28, 2003, the trial court sentenced Ostrosky to two concurrent terms of 7 to 23 months' incarceration with permission for alternative housing and work release, to be followed by one year of probation. These sentences applied to the counts charging a violation of the retaliation statute and terroristic threats. No further sentence was imposed on the remaining counts. Thereafter, Ostrosky filed post-trial motions, which the trial court denied. Ostrosky filed a timely notice of appeal to the Superior Court alleging, inter alia, that the evidence presented by the Commonwealth was insufficient to sustain Ostrosky's conviction pursuant to the retaliation statute.

On appeal to the Superior Court, Ostrosky argued that the trial court erred in convicting him of violating the retaliation statute where, as here, the Commonwealth failed to demonstrate that the Fosters were harmed by his unlawful acts. Specifically, Ostrosky asserted that his conduct, which at most amounted to a single threat, was not sufficient for a conviction because the retaliation statute otherwise contemplates actual harm by an unlawful act or repeated threatening conduct in order to sustain a conviction.

The Superior Court agreed with Ostrosky, finding that the evidence was insufficient to sustain his conviction of violating the retaliation statute. Accordingly, the Superior Court reversed the trial court's judgment of sentence in this regard.⁵ See Commonwealth v. Ostrosky, 866 A.2d 423 (Pa.Super.2005). The court analyzed the language of the retaliation statute, which, as noted previously, provides as follows:

(a) Offense defined. — A person commits an offense if he harms another by any unlawful act or engages in a course of conduct or repeatedly commits acts which threaten another in retaliation for anything lawfully done in the capacity of witness, victim, or a party in a civil matter.

18 Pa.C.S. § 4953(a). Upon examining the provision's language, the court noted that, by its very terms, in order to obtain a conviction, assuming an intent to retaliate, the Commonwealth can sustain its burden by proving any one of the following three scenarios: (1) that the defendant harmed another by any unlawful act; or (2) that the defendant engaged in a course of conduct which threatened another; or (3) that the defendant repeatedly committed acts which threaten another. The Superior Court then observed that in this case, the Commonwealth alleged only that Ostrosky violated the statute pursuant to the first of the foregoing scenarios, namely, that, with the intent to retaliate against the Fosters, he harmed the Fosters by an unlawful act.⁶

The court initially focused on the term "harm" and noted that the legislature did not define the term for purposes of the statute. Thus, as is required by the Statutory Construction Act, 1 Pa.C.S. § 1903(a) (words and phrases shall be construed according to their common and approved usage), the court examined the common dictionary definition of harm, declaring that the term as defined in various dictionary sources encompasses a broad range of injury, loss, or damage. The court noted in this regard:

According to its dictionary definition, the word "harm" constitutes a broad range of wrongs. For example, one dictionary defines harm as, inter alia, physical or mental damage, mischief, hurt, disservice, an act or instance of injury, or a material and tangible detriment or loss to a person. Webster's Third New International Dictionary 1034 (1966). Black's Law Dictionary provides the following expansive definition of the word: "Injury, loss, damage; material or tangible detriment." Black's Law Dictionary 734 (8th ed.2004). Thus, harm can encompass a broad spectrum of physical, psychological, social, and financial injury or detriment.

Id. at 428.

In examining whether the Fosters suffered harm based upon Ostrosky's comments, the court noted that their testimony did not indicate that they suffered any objective harm beyond their having been subjected to the threat itself. The court observed that while Mr. Foster became "concerned" following Ostrosky's final comment in relation to Mrs. Foster and that Mrs. Foster felt "intimidated" by the comment when told of it by a third party, their testimony, otherwise, did not demonstrate harm beyond the feelings associated with the single isolated threat itself. The court, referencing various sources for the notion that feelings of intimidation are the equivalent of feeling threatened, noted the following:

Feelings of intimidation, as testified to by Mrs. Foster, fall under the rubric of feeling threatened. See e.g., William C Burton, Burton's Legal Thesaurus 512 (3d ed.1998). Similarly, Mr. Foster, although first finding the encounter funny, later felt threatened such that he started looking around for help and told someone to call the police. In...