“[A] course of conduct can be based on words alone[.]”
How later courts described this case
- “[A] course of conduct can be based on words alone[.]”
Written by the judges who cited it.
The opinion
J-S45008-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH DOMINIQUE GIBSON :
:
Appellant : No. 375 MDA 2023
Appeal from the Judgment of Sentence Entered March 7, 2023
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003230-2021
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 20, 2023
Keith Dominique Gibson appeals from the judgment of sentence of two
to twenty-three months of incarceration, followed by two years of probation,
imposed upon his conviction for stalking. We affirm.
Given our disposition, we do not extensively reproduce herein the
history of this case. Briefly, in the summer of 2020, Appellant began a
romantic relationship with Kent Fullerton and learned that Fullerton previously
had been a sexual partner of Victim. Between early July 2020 and early June
2021, Appellant communicated with Victim directly and indirectly through
Victim’s wife, by way of phone calls, texts, social media, and in person. The
communications alleged that Victim and his wife were sexual predators who
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S45008-23
lured young men into their home and plied them with alcohol so that Victim
could take advantage of them.1 Appellant also repeatedly threatened to cause
Victim physical harm, both personally and through Fullerton’s father.
Based upon evidence of these events, a jury found Appellant guilty of
stalking on March 7, 2023. The same day, the court sentenced Appellant as
indicated above. Appellant filed no post-sentence motion, instead filing a
notice of appeal on March 8, 2023. Thereafter, both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents the following question for our determination:
Was the evidence presented by the Commonwealth insufficient to
prove beyond a reasonable doubt that [Appellant] was guilty of
stalking pursuant to 18 Pa.C.S. § 2709.1(a)(1) where the
evidence was insufficient to prove that [Appellant] acted with the
intent to place another person in reasonable fear of bodily injury
or to cause substantial emotional distress, most of the speech at
issue was protected speech under the First Amendment to the
[United States] Constitution and Article 1, [§] 7 of the
Pennsylvania Constitution, and [Appellant] did not engage in a
course of conduct that conveyed to the victim that such conduct
would continue where communication between [Appellant] and
the victim ceased in January 2021, and no further communication
occurred until [Appellant] saw the victim in public on June [8],
2021[?]
Appellant’s brief at 5 (cleaned up).
The following governs our review of Appellant’s question:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
____________________________________________
1 Fullerton was twenty-two years old at the time of his relationship with Victim,
who was in his early forties. Appellant was in his early thirties during the
relevant timeframe.
-2-
J-S45008-23
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 a 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 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. Haahs, 289 A.3d 100, 104 n.2 (Pa.Super. 2022) (cleaned
up).
The section of the stalking statute under which Appellant was convicted
provides that a person commits stalking when he “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. § 2709.1(a)(1). The term “course of conduct” is defined
as follows: “A pattern of actions composed of more than one act over a period
of time, however short, evidencing a continuity of conduct. The term includes
lewd, lascivious, threatening or obscene words, language, drawings,
-3-
J-S45008-23
caricatures or actions, either in person or anonymously.” 18 Pa.C.S.
§ 2709.1(f).
Appellant argues that the evidence was insufficient to prove the intent
element of the offense, that his communications were protected free speech,
and that his various actions did not amount to a course of conduct. See
Appellant’s brief at 10. After a thorough review of Appellant’s brief, the
Commonwealth’s briefs, the applicable law, and the certified record,2 we agree
with the trial court’s assessment of the arguments raised by Appellant, and
we affirm the judgment of sentence on the basis of the cogent and well-
reasoned opinion that Honorable Merrill M. Spahn, Jr., entered on May 8,
2023.
Specifically, Judge Spahn properly held that the Commonwealth’s
evidence established “that Appellant intended both to place [Victim] in a
reasonable fear of bodily injury and to cause [Victim] substantial emotional
distress with his course of conduct.” Trial Court Opinion, 5/8/23, at 12. See
id. at 6-10, 12 (detailing Appellant’s threatening communications). Indeed,
given Appellant’s express indications that he would beat Victim “until [he] was
unrecognizable,” that he could probably kill Victim within four minutes, and
that Fullerton’s father would render Victim identifiable only by dental records,
____________________________________________
2 We note that the certified record does not contain the trial exhibits.
However, the trial transcripts contain adequate descriptions of the exhibits, if
not verbatim reiteration, such that we are able to conduct our review.
-4-
J-S45008-23
see N.T. Trial, 3/6/23, at 104, Appellant’s contention that there was no
evidence to allow the jury to conclude that he intended to put Victim in fear
of bodily injury or to cause them substantial emotional distress is wholly
unfounded. Likewise, Judge Spahn correctly determined that the volume and
duration of Appellant’s threats fell within the statutory definition of a “course
of conduct.” See Trial Court Opinion, 5/8/23, at 14. See also In re M.J.M.,
858 A.2d 1259, 1263 (Pa.Super. 2004) (“[A] course of conduct can be based
on words alone[.]”).
Finally, Judge Spahn properly ruled that Appellant’s conduct of
repeatedly threatening to physically harm Victim was not constitutionally-
protected free speech. See Trial Court Opinion, 5/8/23, at 14-15 (citing, inter
alia, Interest of: J.J.M., 265 A.3d 246 (Pa. 2021)). See also J.J.M., supra
at 254 (providing that serious expressions of an intent to inflict harm “are not
covered by the umbrella of First Amendment protections due to the need to
shield individuals from the fear of violence, from the disruption that fear
engenders, and from the possibility that the threatened violence will occur”).
Accordingly, we conclude that none of Appellant’s arguments has merit
and affirm his judgment of sentence.
Judgment of sentence affirmed.
-5-
J-S45008-23
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/20/2023
-6-
Circulated 11/30/2023 09:15 AM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
v. No. CP-36-CR-0003230.2021
KEITH DOMINIQUE GIBSON sit
5.k
3± $
QPINION PURSUANT TO RULE 1925() OE TIHE
PENNSYLVANIA RULES OF APPELLATE PROCEDURE
%
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-• 8z C"">
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BY: SPAIIN, JR., I. i
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May 8, 2023
Appellant has filed a timely appeal to the Superior Court of Pennsylvania in the above-
captioned matter. Appellant raises a single claim alleging that the evidence presentcd by the
Commonwealth was insufficient to establish Appellant's guilt of Stalking' beyond a reasonable
doubt. Specifically, Appellant claims that the evidence was insufficient to prove that Appellant
acted with intent to place another person in reasonable fear of bodily injury or to cause substantial
emotional distress. Additionally, Appellant elaims that most of his speech at issue was protected
by the First Amendment to the United States Constitution and Article I, Section 7 of the
Pennsylvania Constitution. Lastly, Appellant claims that his actions did not constitute a course of
conduct that would convey to the victim that such conduct would continue whcre communication
between Appellant and the victim ceascd between January 2021 until June 8, 2021.
18 PC.S.A. $ 2709.1(a))
- In his Statement of Errors Complained of on Appeal, Appellant erroneously stated that the final date hc contacted
the victim was June 6, 2021.
Appendix B
PROCEDURAL BACKGROUND
By Criminal Information docketed to Number CP-36-CR-0003230-2021, Appellant was
charged with allegedly having committed the offense of Stalking.' Said charge stems from a series
of allegedly criminal incidents which occurred between July 16, 2020 through June 8, 2021 in
West Lampeter Township, Lancaster County, Pennsylvania.
On October 13, 2021, Appellant filed an Omnibus Pre-Trial Motion seeking to have the
charges dismissed for thc Commonwealth's purported failure to meet the statutory requirements
of the charged crime of Stalking. Appellant further claimed that the charge should be dismissed
because to not do so would be a violation of the First Amendment of the United States Constitution
and Article I, Section 7 of the Pennsylvania Constitution. Appellant simultaneously submitted a
memorandum in support of his Omnibus Prc-Trial Motion.
On December 13, 2021, the court ordered that a hearing relative to said motion be
scheduled for February 10, 2022. This hearing was then re-scheduled for March 10, 2022 following
thc court granting the Commonwealth's Motion for a Continuance. The hearing commenced on
March I0, 2022, bnt was recessed due to a dispute between parties regarding discovery.
Accordingly, the court ordered thc hearing resume on April 7, 2022. After the completion of the
hearing on April 7, 2022, both parties were given the opportunity to submit written memorandum
to support tbeir respective positions.' By order dated June 3, 2022, thc court ordered that
Appellant's motion to dismiss was denied and that the matter be listed for trial.
On August 24, 2022, Appellant filed a motion for a continuance which was denied by a
court order dated the next day. On January 9, 2023, Appellant filed a Motion in Limine to Limit
·18Pa.C.S.A. $ 2709.1()1).
Having already submitted a memorandum in support of his position when he filed the Omnibus Pre.-Trial Motion,
Appellant elected not to submit supplemental memoranda. The Commonwealth submitted their Response and
Memorandum of Law on May 27. 2022.
2
Course of Conduct Evidence and Request a Pretrial Conference. A pretrial conference was held
on February 15, 2023 relative to admissibility issues related to the "course of conduct' evidence.
Following the pretrial conference, trial was scheduled for March 6, 2023.
The matter proceed to a jury trial commencing on March 6, 2023 for the sole charge of
Stalking. On March 7, 2023, the jury rcturned a verdict of guilty. (N.T.I. p. 304). In fashioning
sentence, the court considered the facts and circumstances of the oflense; the comments offered
by the Assistant District Attorney, Defense Counsel, and the Appellant; the limited information
provided relative to Appellant's background;° Appellant's individualized rehabilitative needs, as
well as the need for a deterrent and the protection of the entire community; and the applicable
sentencing guidelines. Id. at 314. Appellant was sentenced to period of incarceration not less than
two nor more than twenty-three months followed consecutively by two years of probation. Id, at
315.
As noted above, Appellant filed the instant Notice of Appeal on March 8, 2023. By order
dated March 10, 2023, Appellant was directed to file a concise statement of errors complained of
on appeal. On April 27, 2023, Appellant filed bis Statement of Errors Complained of on Appeal.
Appellant's sole claim challenges the sufficiency of the cvidcnce presented at trial. 'The
Commonwealth has not filed an Answer thereto. Accordingly. this matler is ripe for disposition.
INDINGS OF FACTS
While the following level of detail regarding factual findings may be beyond the scope of
the statutory requirement in an opinion pursuant to Rule 1925(a),' the court feels obliged in this
·18 PC.S.A. 2709.1(a)1).
' Both the Commonwealth and Appellant waived ther right to a Pre-Sentence Investigation repert. (N.T.T, p. 307).
Pennsylvania Rule of Appellant Procedure 1925(a).
3
matter to present a more complete story of the relationships. and their respective interplay,
underlying the criminal conduct in this matter.
Keith Gibson (Appellant) is a thirty-three-year-old man who at the time of the alleged
incidents lived in Frederick, Maryland. (N.TT. pp. 237-41). Nathen Claycomb ("Claycomb") is
forty-four years old, has been married to his wife Denise for seventeen ycars, together they have
two sons, and at tbe time of the alleged incidents lived at 1124 Hampden Drive, Strasburg,
Lancaster County, Pennsylvania, Id. at 96-97, 212. Kent Fullerton is a twcnty-six-year-old man
who at the time of the alleged incidents resided with his parents at 1211 Church Road, Manchester
Township, York County, Pennsylvania. Id. at 214, 260. C. Ex. I.
In 20!9, Claycomb worked fro Servant Stage and Jenise worked at Nathan's previous
place of employment, Sight and Sound Theatres." d at 84, 1I. Fullerton worked as a senior artist
at another theatre organization located in Lancaster County, American Music Theatre. Id. at 215.
Sharing a professional interest in theatre, Claycomb and Fullerton became friends through another
Sight and Sound employee, Eli Drawk. Id. at 200, 216. This fiendship
r grew over the coursc of
2019, leading to Fullerton's repeated presence in the Claycombs' home, shared meals, and various
social activities inside and outsidc the home. Id. at 138, 226-27.
On June 30, 2019, a twenty-two-year-old Fullerton accompanied the Claycombs and their
younger son on a vacation to Ocean City, Maryland. Id. at 97, 144. That night, Claycomb and
Fullerton shared the bed while Denise and the Claycomb' son shared the pull-out couch, with e
curtain drawn between thc two pairs. Id. at 218. That night, Claycomb and Fullerton's relationship
turncd sexual. as they cngaged in the sexual touching of each other's genitalia. Id. at 203. This
began an affair between Claycomb and Fullerton that included at least ten to fifteen more sexual
Boh Servant Stage Conpany and Sight amd Sound 'Theatres ate theatre organizations located in Lancaster County.
Sight and Sound Theatres is a Christian organization that performs Biblical scenes as dramatic plays.
4
encounters over a period of several months in 2019. Id. at. 219, Both being of legal age, thesc
sexual encounters were routinely preceded by Claycomb and Fullerton mutually imbibing elcohol,
often engaging in mixology during their social interactions or sharing meals at which alcohol was
served. Id. at 220.
By 2020, the affair began to reach its end, especially with tho onset of the Coronavirus
pandemic in March of2020. Id. Claycomb and Fullerton had intermittent contact via text messages
and social media in the spring of 2020, and Fullerton visited the Claycombs to commiserate at
Denise's mother's home following her father's passing in March of2020. Id. et 200.
It was also in March of 2020 that Fullerton met Appellant through Appellant's sistcr. Id. at
221. Fullerton and Appellant immediately grew close, and both considered themselves to be dating
by late May to early June of2020. Id. at 221, 238. In May 2020, Clayconb sent a text message to
Fullerton while Fullerton was with Appellant. Id. at 239. Fullerton and Appellant crafted a reply
message to Claycomb that Fullerton was no longer in a position to communicate with Claycomb
and that he would let Claycomb know if that changed. Jd. at 98, 228. In June of 2020, Claycomb
left Fullerton an unanswered voicemail. Id, at 22I.
[n early July of 2020, Claycomb scnt an e-mail to Fullerton containing a picture of an
envelope addressed to Fullerton at his parent's address containing an apology letter from
Claycomb to Fullerton for stepping back from their relationship. Id. at 99. Fearful that Fullerton
would not wish his parents to interccpt the letter, Claycomb sent a picture of the envelope with the
attached mcssage, "Td like to send you this, but I don't think you would want it going to your
parents. Is this the best address? Id. at 223.
Prior to July 16, 2020, ncither Nathan nor Denise Claycomb bad ever hcard of, spoke to,
or even about knew the existencc of Appellant or his relationship with Fullerton. Id, at 76, 101.
5
In the evening of July 16, 2020, Denise, who at this point was unaware of her husband's
homosexual inclination and his affair with Fullerton, received a voicemeil from an enraged
Appellant. Id. at 77. {n that voiccmail, Appellant informed Denise that Claycomb had engaged in
sexual activities with Fullerton and Drawk behind her back, that one of hosc sexual encounters
betwecn Fullerton and Claycomb happened with her in the room during the aforementioned
vacation to Ocean City, Maryland, and, referring to the letter, that Claycomb must stop attemptng
to contact Fullerton, otherwise Appellant would "beat his fucking ass" likc someone shouid have
done a long time ago." (N.T.T, C. Ex. I). Appellant also accuscd Denise of helping Claycomb
"liquor up" young men "to abuse them." Id, This voicemail was immediately followed by a string
of text messages from Appellant to Denise reiterating that Appellant viewed Claycomb as a
predator who "preys {o]n young boys" and that when Appellant catches Claycomb "his ass is
mine." (N.T.T. C. Ex. 2). At this tine, Claycomb was at a nearby Rutter's convenience store and
rccived a text message from Denise to return home. (N.T.T. p. 100). Claycomb returned home
and listened to the voicemail Appellant left Denise, Id
After listening to the voicemail, Claycomb received two calls from Appellant, at 7:ll p.m.
and 7:54 p.m., and answered both times. Id. at 102. The first call lasted twenty-thrcc minutes and
the second lasted twenty minutes. (N.T,T. C. Fx 5) In these phone calls, Appellant informed
Claycomb that he was currently dating Fullerton, that he knew Claycomb and Fullerton had had a
sexual relationship prior, that he intended to inform anyone he could that Claycomb was a closeted
gay man, and that he intended to physically assault Claycomb should the two ever meet in person,
id. at 104. Further, Appellant threatened to inform Fullerton's father of the affair, claiming that if
Fullerton's fsther found out about the affair that he would harm Claycomb to a degree that he
Denisc observed the cal incoming but, nol knowing the number, decided not to answer it (N.TT,p. 76).
6
would only be recognizable by dental records. d. I.astly, claiming that the courts go easy on those
who murder predators, Appellant infomed Claycomb that the average response time of an
ambulance is seven minutes and Appeliant could probably kill him in four minutes. Id.
AI 8:21 p.m. that same evening of July 16, 2020, following their phone conversations,
Appellant began texting Claycomb ordering him to remove any social media posts containing
Fullerton from his accounts, to which Claycomb complied. ld. at 107-08. These text messages
went back and forth late into the night and continued the next day, including a message from
Appellant to Claycomb claiming that Appellant had recorded their phone conversations in which
Claycomb admitted to his affairs with Fullerton and Drawk and threatened to rclease it should he
fcc! that Claycomb attempted to "victim shame." {d. at 107-109. This text message chain ended in
the early afternoon of July 17, 2020 with Appellant accusing Claycomb of contacting a mutual
friend of Claycomb's and Fullerton's and trying to shift the blamne to Fullerton, which Claycomb
did not do and denied doing in his response to Appellant. id. at 109.
On July 31, 2020, Appellant sent screenshots cf Claycomb's Faccbook posts to Claycomb
via text message reiterating tbat all of Claycomb's posts that contain or refer to Fullerton are to be
removed fror his social media accounts. Id. at 110.
On August 7, 2020, both Nathan and Denise Claycomb received more text messages from
Appellant. Id, at 83, 1I8. Appellant informed Denise that hc had spoken with Human Resources
at Sight and Sound and relayed his accusations of "predatory behavior." (N.TT C. Ex. 3).
Appellant also sent Denise a picture of a letter addressed to Denise's mother threatening to relay
his accusations to her. Id. In his messages to Claycomb, Appellant accused Claycomb ol "making
up lies" about him and harassing Fullerton. (N,T.T. C. Ex. 8). When Claycomb informed Appellant
that hc had no idea wbat he was talking about, Appellant bcgan calling, texting Claycomb to "be
7
a man and pick up the phone," and saying that if he did not pick up the phone, he would come to
Claycomb's home. Id. Claycomb did pick up the phone for a short conversation that consisted
mostly of Claycomb informing Appellant that be would be getting a lawyer. (N.T.I. p. 120).
Appellant ended the chain of text messages with another threat to tell Fllcrtons father about the
affair betwcen Fullerton and Claycomb and a threat from Appellant that "there arc so many people
that would love nothing more than to get their hands on you. (NT.T. C. Ex. 8). Two days later,
Appellant texted Claycomb once to inform him that Fullerton's entire family, father included. now
knows about the affair. Id.
In the span of those two days, on August 8, 2020. an Instagram account was set up under
the profile name "exposingpapredators.(N.TT. C. Ex. 12). This account contained only onc post,
a screenshot of the text messages between Appellant and Claycomb from Appellant's phone,
tagging both of the Claycombs' places of employmcnt and their hometown. id. Fhat same day,
rom a phone number created using Google, Appellant texted a scrccnshot of the Instagram account
and adjoining post to Claycomb with a text that reed, "You and Denise are going to be instagram
famous nowt!! (N.T.T. C. Ex. 13). Also, that same day, that new Instagram acount commented
on Claycomb's Instagram post from that day which quoted the Bible, with the commcnt, "le
probably also said be faithful to your wife and not get young men drunk so you can have sex with
them in your house while your wife and kids are asleep! (N.TT. C. Ex. 14).
It was at this point that the Claycombs decided to seek legal assistance. (N.T.T. p. 120),
The Claycombs hired an attorcy to issue and scrvc a cease-and-desist letter to Appellant ordering
him to have no more contact with them directly or indirectly, and to not cnter onto their property.'
IP The cease-and-desist letter also informed the court that at some point Appellant had contacted Pennsylvania
Children and Yauth in an attempt to bave thc Claycombs be deemed unfit pareots to their two sons. (N,T,T. £. Ex.
7).
8
(N.T.T. C. Ex. 7). This cease-and-desist letter was served on Appellant on August 13, 2020.
(N.T.T. C. FR. 10).
In September of 2020, Appellant sent a Facebook friend request to Denise Claycomb.
(N.T.T. C. Ex. 4).
In October 2020, another instagram account was set up under the profile name
"use063019' and bio that read "What is done in the dark shall come to the light!" {N.Z.T. C.
Ex, I5). This Instagram account only had two posts, and one was the same scrcenshot of text
messages used in the sole post of the "exposingpapredators" account, ld. The other post contained
a sereenshot of different messages between Appel}ant and Claycomb, also taken from Appellant's
phone. Id.
In January 2021, a Faccbook account was created name "SaveOur YougMen." (N.T.T, p.
147), This account conmented on a post of Angie Vertucci, a friend of the Claycombs. Id. The
comment read,
"You should be aware of who your 'friend' Nathan Claycomb is. Here's a
scrcenshot of him admitting to not ONE but TWO sexual relationships with
young men in the last year. Nathan and Denise are sexual predators who
invite young mcn into their home ta babysit' then gain their trust only to
serve them large amounts of alcohol and suggest that the youngen sleep
in their marital bed with them so Nathan can grope thcm. This even
happened while thcir children are in the room. Servant Stage fired Nathan
for this and Sight & Sound was notified that Denise was aware of Nathan's
sexual rclationship with one of thcir young male employees. Tney are
seriously disturbed individuals."
(N.T.T. C. Ex. 16). The comment included the same screenshot contained in posts of both
the aforementioncd Instagram accounts. ld.
Finally, in the morning of June 8, 2021, Claycomb went to his 11 a.m. workout
appointment with his pcrsonal trainer at the Planet Fitness located in Kendig Square, Willow
''The date of the initial sexual encounter between Claycomb and Fullcron was Jane 30, 2019, 0r 0630/19,
9
Street, Lancaster County, Pennsylvania. (N.T.T. p. 173), As Claycomb was walking through the
parking lot from his car towards Planet Fitness, Appellant pulled up beside Claycomb in a white
SUV and said, "Hey, buddy!" Id. at 174. As this was the first time Claycomb had ever met
Appellant, he did not recognize hir until Appellant temoved his surglasses and begna yelling at
Claycomb about having sex with younger men. Id. Immediately, Claycomb continued walking into
Planet Fitness and began calling 9-1-1, Id. Appellant then drove his car in reverse through the
parking lot, parked in front of Planet Fitness, and followed Claycomb into Planet Fitness on foot.
id, at 176. Inside, Appellant began shouting, "This is Nathan Claycomb! He and his wife are sexual
predators! They get men drunk and have sex with them in their marital bed!" (N.TT. C. Ex. 17).
Appellant was shouting so loud that Claycomb had a hard time communicating with the 9-I-1
operator while in Planet Fitness. (N.T.T, p, 177). Simultancously, Appellant had bis phone out and
was video recording the entire encounter inside Planet Fitness. Id, Unable to hear the 9-1-1
operator, Claycomb returned to his car and reported the incident to the police, and Appellant left
the shopping center parking lot. Ii.
In the days immediately following the confrontation, Appellant posted a series of Instagram
stories on his personal account referencing the Planet itness incident and his ongoing crusade
against Claycomb. (N.T.T. C'. ER. I9, (YOU'RE THE PREDATOR RIGHT UP UNTIL YOU'RE
THE PREY)); (NT.T. C. Ex. 20, (Contains a picrre of the Planet Fitness, of which Appellant is
not a member (N.T.T. p. 194), with the caption, "TIME TO WORK OUT" )); (NT.T. C. Ex. 21,
("SCREEN SHOTS, EMAILS, TEXT MESSAGES, VOICEMAILS AND AUDIO
'3 At trial, when asked why be was at the Kendig Square shopping center at 1) a.m. on a Tuesday when be lived and
worked in Frederick, Maryland, Appellant answered that he was visiting Fullerton and was simply goig grocery
shopping at the Weis Supermarket also located in the shopping center and fortuitously happened to spot Claycomb
as he was walking through fhe parking lot. (N.T.T. p, 247). Despite this proffered explanation for his presence,
either before nor after their confrontation, Appellant did not step foot in the Weis Supermarket that day. Id at 250.
.0
RECORDINGS. When you have the screenshois that could ruin someone's life: TRY ME IF YOU
WANT TO!)); (N.T.T. C. Ex. 22, (REMEMBER IIIAT TIME GARY PLAUCHF SHOT THE
PREDATOR THAT PREYED ON HIS SON, LIVE ON NATIONAL TV... AND ONLY GOT
PROBATION AND COMMUNITY SER VICE."))
DISCUSSION
As noted, Appellant's sole allegation of error pertains ta his claim that the evidence
presented at trial was insufficient as a matter of law to sustain his conviction of Stalking.'
Specifically, Appellant contends that the evidence was insufficient to show: that he intended to
place another person in reasonable fear of bodily injury or to cause substantial emotional distress;
that most of his speech at issue was not protected under the First Amendment of the United States
Constitution avd Article I, Scction 7 of the Pennsylvania Constitution; and that hc cngaged in a
course of conduct that conveyed to the victim that such conduct would continue.
I. Suffieieney of Evidence
A challenge to the sufficiency of thc evidence presents a question of law and is subject to
plenary review under a de novo standard. Commonwealth • Smith, 234 A.3d 576, 581 (Pa. 2020).
Jn reviewing Appellant's challengc to the suffciency of the evidence, the appellate courts need
view the evidence produced at trial in the light most favorable to the Commonwealth as verdict
winner to determine if it is sufficient to allow a reasonable jury to find each element of the offenses
charged beyond a reasonable doubt. Commonwealth ». Slocum, 86 A.3d 272, 275 (Pa. Super.
2014).
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
evalatcd, and all evidence actually received must be considered. Finally,
the trier of fact wbile passing upon tle credibility of witnesses and thc
18 Pa.C.$.A. $ 2709.1(a)01).
l1
wcigtt of the evidence produced is free to believe all, part or none of the
evidence.
td
For Appellant to prevail on his claim that the evidence is insufficient, it must be said thEt
accepting all the evidence and all reasonable inferences drawn from the evidcnce upon which, if
believed, the verdict could properly have been hascd, that the evidence would be insufficient in
law to find beyond a reasonable doubt that he is guilty of the crime charged. Commomwealth ».
Meadows, 369 A.21 1266, 1268 (Pa. 1977): See also Commonwealth ». Quel, 27 A.3d 1033, 1037-
38 (Pa. Super. 2011), "It is axiomatic that "[b]eyond a roasonable doubt" has never been construed
to equate to 'beyond all doubt." See Commonwealth • Jones, 858 A.2d 1198, 1201-04 (Pa. Super,
2004).
The Pennsylvania Crimes Code defines the crime of Stalking, I8 Pa.C.$.A. $ 2709.1(a)(1),
as follows: $ 2709.1 Stalking
(a) Offense defined. - A person commits the crime of stalking when
thc person either;
(l) engages in a course of conduct or repeatedly commits
acts towards another person, including following the person
without proper authority, under circumstances which
demonstrate an intent to place sucb other person in
reasonable fear of bodily injury or to cause substantial
emotional distress in such other person; or
(2) engages in a course of conduct or repeatedly
communicates to another person undcr circumstances which
demonstratc or communicate either an intent to place such
other person in reasonable fear of bodily injury or to cause
substantial emotional distress to such other person.
1 Pa.C.S.A. $ 2709.1.
In viewing the totality of Appellant's actions, the court rcaches the inescapable conclusion
that Appellant intended both to place Claycomb in a reasonablc fear of bodily injury and to cause
Claycomb substantial emotional distress with his course of conduct,
t2
From thc inception of communication between Appellant and the C'laycombs, Appellant
has threatened to physically assault Claycomb should he contact Fullerton again, should he attempt
to explain his side of the story to mutual friends of his and Fullerton's, or should he happen to
cross paths with Appellant in everyday life. (NIT. p. 104, threatening that cven if he saw
Claycomb in downtown Lancaster City with his wife and sons that Appellant would beat him).
Appellant threatened to send Fullerton's father afler Claycomb, asserting, as mentioned above,
that Claycomb would only be recognizable by dental records should that come to fruition.
Appellant even stated the time he estimated it would take to kill Claycomb before an ambulance
could arrive.
Appellant's intent to place Claycomb in reasonable fear of bodily injury pales only in
comparison to his intent to cause Claycomb substantia! emotional distress. Over the course of
twelve months, Appellant, having never even met Claycomb, threatened to physically harm
Claycomb himself and'or with the aid of Fullerton's father: contacted the employer of Claycomb
and his wife to level his accusations in an attempt to deprive them of their livelihood;' thrcatcned
to send a letter to Denise Claycomb's mother leveling his accusations and outing Claycomb's
homosexual affairs; contacted Pennsylvania Children and Youth in an attempt to havc the
Claycombs' be deemed unfit parents; sent a Facebook friend request to Denise Claycomb
following service of the cease-and-desist letter; had a hand in, if not was the sole actor in, the
creation of threc different social media accounts that publicly accused the Claycombs of predatory
behavior, targeting close friends of the Claycombs with comments and tagging the Cluycombs'
hometown and places of employment; ' and, lastly, confronted Claycomb in public mprompted,
' Claycomb actually was forced to sip down from his position at Servant Stage following Appellant contacting thc
theatre organization and accusing Claycomb of predatory behavior. (N.T.T, • 149).
'At trial, Appellant denied participation in the crcation of the social media accounts, (N.T.T. p. 246). but by his
own admission in his Statement of Lrrors Complained of on Appeal, the January 2U2I Facebook accont wus of his
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followed him into Planet Fitness, and screamed his accusations of predatory behavior in an attempt
to ruin Claycomb's repulation within yet another sphere of his private life.
Given the volume, duration, and egregious nature of Appellant's course of conduct against
Claycomb, there is no merit to the claim that Appellant's actions did not convey to Claycomb that
such conduct would continue.
In light of the foregoing, Appellant has filed
a to demonstrate that the evidence was
insufficient in law to sustain his conviction in the instant matter. As such, Appellant's claim must
fail.
Il. First Amendment
The First Amendment of the United States Constitution and Article I Section 7 and 20 of
the Pennsylvania Constitution protect the rights of persons to free speech. '{he right of free speech
is fundamental to our legal system and national identity. Thercfore, the factual issues as to the
alleged criminal conduct and intent of the defendants must be judged with the greatest of care,
However, the United States Supreme Court and our own Pennsylvania Supreme Court have made
it clear that thcse rights are not unlimited. Indeed, additional categories of offenses that criminalize
spccch - including solicitation, extortion, and othcr speech "integral to criminal conduct"have
been deemed to pass constitutional muster. See United States • Williams, 553 U.S, 285, 128 S.CI.
1830 (2008); United States • Hobgood, 868 F.3 744 (8th Ci. 2017); /n the Interest of JJ.M,
265 A.3d 246 (Pa. 2021) (noting that child pornography, fraud, true threats, and other speech
"integral to criminal conduct" are not immunized fro prosecution undcr the First Amenmcnt)
(citation omitted). In addition, our Supreme Count has upheld a criminal statute prohibiting
harassment by unwanted, repeated communications in the face of a First Amcndment challenge,
own doing. That Facebook account posted the same screenshot of messages that was contamed on both of thc related
Jnstagram account.
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noting that the state has a legitimate interest in preventing harassment and that the offense was
directed at harassing conduct rather than the speech itself, See Commonwealth v. Hendrickson, 724
A.2d315 (Pa. 1999).
Viewed in its totality, thc court concludes that Appellant's conduct falls outside thc bounds
of constitutionally protected speech. The communications were clearly intended to be physically
and emotionally threatening, defamatory, and distress-inducing. Claycomb is not, by any account,
a public {gure in the town in which he ives, and the communications related to matters that are
not of public concem. See Snyder v. Phelps, 562 U.$. 443, 452 131 $.C1, 1207 (2011) ("Not Ell
speech is of equal First Amendment importance, [} and where matters of purely private
significance are at issue, First Amendment protections are often less rigorous.") (brackcts and
quotation marks omitted). It is not the content of Appellant's speech that removes it from First
Amendment protection, but the manuer in which he weaponized it that forfeits all constitutional
protection. As such, Appellant's claim that his conduct falls within the protections of the First
Amendment and, thereforc, the conviction against him in thc instant matter cannot be sustained
must also fail.
CONCLUSION
Accordingly, for the reasons set forth above, the court concludes the sole ground identified
by Appellant in his Statement of Errors Complained of on Appeal Pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b) lacks merit and respectfully requests that the instant appeal be
DENIED.
15
B
L M. SPAHN, JR., JUDGE
023
Attest:
Copies to: Caitlin B. Blazier, Esquire, Assistant District Attorney
Diana C. Kelleher, Esquire, Assistant Public Defender
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