Com. v. Zwiener, S. ( 2019 )

J-S68014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SUSAN ZWEINER :
:
Appellant : No. 88 WDA 2018
Appeal from the Judgment of Sentence December 11, 2017
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000416-2017
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 11, 2019
Appellant, Susan Zweiner, appeals from the December 11, 2017
judgment of sentence following her conviction at a bench trial of one count
each of False Reports to Law Enforcement Authorities, 18 Pa.C.S. §
4906(b)(1), and Harassment, 18 Pa.C.S. § 2709(a)(3). We affirm.
The trial court summarized the facts of the crime and procedural history
as follows:
The record reveals that the [instant] charges precipitated
from [Appellant’s] February 5, 2017 telephone call to 911
emergency services to report the odor of marijuana and hairspray
emanating from her neighbor’s residence, located [one-]half of a
city block away.[1] When an officer arrived on scene, he was
unable to detect the presence of either substance. The record is
also clear that [Appellant] frequently lodges similar complaints
against said neighbor, James Reavel, and that the two have a
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1 Appellant testified that she smelled hairspray and marijuana “emanating
from the woods.” N.T., 10/4/17, at 40, 42.
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* Former Justice specially assigned to the Superior Court.
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long-standing, contentious history, which includes the filing and
disposition of prior criminal charges against [Appellant].
Following trial, a pre-sentence investigative report prepared
by the Cambria County Adult Probation Bureau revealed a
standard sentencing guideline range of Restorative Sanctions to
one month relative to the Fictitious Reports charge. On December
11, 2017, despite an argument by the Commonwealth for an
incarceration sentence,1 the [c]ourt imposed a probationary
sentence of one year relative to the Fictitious Reports charge, and
a consecutive probationary sentence of 90 days relative to the
Harassment charge. Regarding both counts, [Appellant] was
ordered to have no contact with Mr. Reavel, and was ordered to
pay fines.
1 The Commonwealth noted that [Appellant] was
previously on probation for another incident with the
same victim, and argued that [Appellant] does not
understand the importance of leaving the victim
alone. N.T. 12/11/17, p. 4.
Thereafter, with the assistance of appellate counsel,
[Appellant] filed a timely appeal and “Concise Statement of the
Matter Complained of on Appeal” (“Concise Statement”). In her
Concise Statement, [Appellant] raises three issues for
consideration,[2] which we will address seriatim.
Trial Court Opinion, 5/4/18, at 1–2.
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2 In her appellate brief, Appellant has abandoned two of the three issues that
she asserted in her Pa.R.A.P. 1925(b) statement. Commonwealth v.
Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011) (Issues raised in Pa.R.A.P.
1925(b) statement that are not included in appellate brief are abandoned).
Issues are waived for failing to present any argument in support thereof. See
Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015) (holding that
“where an appellate brief fails to ... develop an issue in any other meaningful
fashion capable of review, that claim is waived. It is not the obligation of an
appellate court to formulate appellant’s arguments for him.”) (citing Wirth v.
Commonwealth, 95 A.3d 822, 837 (Pa. 2014)).
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Appellant raises the following single issue on appeal: “Whether the
court erred in allowing evidence against [Appellant], as per Pa.R.E. 404(b)[3]?”
Appellant’s Brief at 4.
The trial court determined that the issue posed by Appellant in her
Pa.R.A.P. 1925(b) statement, that “[t]he [c]ourt erred in allowing evidence
against the Defendant, as per Pa.R.E. 404 (b),” “lack[ed] any indicia of
specificity to enable effective review.” Pa.R.A.P. 1925(b) Statement, 2/15/18,
at 1; Trial Court Opinion, 5/4/18, at 5, respectively. The trial court futher
explained:
Specifically, Pennsylvania Rule of Evidence 404(b)
addresses evidence of crimes, wrongs or other acts. Pa.R.E.
404(b). The record is replete with evidence as to numerous
instances when [Appellant] contacted 911 to lodge reports against
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3 Pa.R.E. 404(b) provides as follows:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
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Mr. Reavel, some or all of which could have fallen under the
confines of Rule 404(b). At trial, this information was elicited from
both law enforcement and [Appellant]. For instance, Officer Chris
Matcho testified that since 2014, the Upper Yoder Police
Department received 17 calls from [Appellant] relative to Mr.
Reavel, none of which were founded. N.T. 10/4/17 at p.p. 21-22.
When the [Appellant] testified, she either did not deny or could
not recall any of the particular police reports about which she was
questioned. In fact, she admitted that she has been calling 911
since 2001 to report attacks and harassment by Mr. Reavel, and
indicated that she “takes responsibility for her actions.” N.T.
10/4/17 at p. 49.
Again, we believe that some, or all, of these phone calls fall
within the purview of Rule 404(b). We also note that at trial, trial
counsel lodged various objections, sounding in relevancy and
hearsay, to testimony regarding some calls. Thus, we are
unaware which objection, if any, appellate counsel is now
attempting to pursue. In fact, appellate counsel may not even be
referencing any of the 911 phone calls. After all, prior to trial, the
Commonwealth filed a “Notice Pursuant to Pa.R.E. 404(b) [Other
Crimes Evidence for Use in Providing Identity, Intent, Plan and
Common Scheme]” which references [Appellant’s] false report
convictions in Texas, not Pennsylvania. Thus, we find this issue
to be too ambiguous for effective review.
Id. at 5–6.
On appeal, Appellant wholly fails to respond to the trial court’s finding
of ambiguity and waiver. Appellant notes only that the Commonwealth elicited
testimony that she made seventeen calls to police from 2014 to 2017.
Appellant’s Brief at 8. Because Appellant never identified these specific
instances to the trial court, we agree with the trial court that the “issue” was
ambiguous and the claim, waived. Commonwealth v. Lemon, 804 A.2d 34,
37 (Pa. Super. 2002) (failure to concisely identify issue sought to be pursued
on appeal impedes trial court in its preparation of opinion and results in waiver
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of issue). Appellant’s bald assertion in her Pa.R.A.P. 1925(b) statement is
inadequate to preserve her claim for review.
Assuming, arguendo, that Appellant’s claim was not waived for the
reasons cited above, we would find it waived for failure to develop the claim
in her brief. Appellant fails to provide any analysis regarding how the trial
court’s evidentiary rulings violated Pa.R.E. 404(b).4 Appellant’s Brief at 7–8.
Moreover, she fails to demonstrate how the proffered evidence prejudiced her,
where she admitted making the calls, and they were used to show a pattern
of behavior in support of the harassment charge. N.T., 10/4/17, at 21, 48–
515. “While this Court may overlook minor defects or omissions in an
appellant’s brief, we will not act as his or her appellate counsel.”
Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015).
Judgment of sentence affirmed.
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4 While the Commonwealth filed “Notice Pursuant to Pa.R.E. 404(b)(4)” of its
intent to introduce prior false reports by Appellant to law enforcement, Notice,
10/4/17, the record lacks any court order pursuant to Rule 404. Moreover,
upon the Commonwealth’s introduction at trial of prior calls by Appellant to
police, Appellant did not object. N.T., 10/4/17, at 46–52.
5 Appellant testified, inter alia, “I’ve been making complaints for quite
sometime. I have pictures of people hiding in the woods in Halloween
outfits. . . . I’ve been calling [police] since 2000, 2001.” N.T., 10/4/17, at
50, 51.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2019
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