Com. v. Mezzacappa, T.

J-A28039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRICIA MEZZACAPPA
Appellant No. 627 EDA 2014
Appeal from the Judgment of Sentence January 27, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-SA-0000154-2013
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 06, 2014
Tricia Mezzacappa appeals pro se from her judgment of sentence
following a verdict of guilt for the summary offense of harassment1. Upon
careful review, we affirm.
The charges stem from a series of actions by Mezzacappa, a local
resident, against the Borough of West Easton’s staff and officials. On April
11, 2013, Mezzacappa appeared at the Borough Hall for purposes of
retrieving borough records under the Right-to-Know Law2. Jill Garcia, a
borough clerk, denied Mezzacappa initial entry and contacted the Easton
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1
18 Pa.C.S. § 2709(a)(3).
2
65 P.S. § 67.101, et seq.
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Police Department to escort her on the premises.3 After Mezzacappa gained
entry through a police escort, tensions between Mezzacappa and Garcia rose
following Mezzacappa’s request for a copy of the borough ordinance or
mandate that requires the police to escort her every time she enters the
borough hall. N.T. 1/27/2014, pp. 19-30. Garcia informed Mezzacappa that
the escort was necessary because she feared Mezzacappa, and the correct
paperwork needed to be filed in order to properly process her request. N.T.
1/27/2014, pp. 14-16. Mezzacappa stated that, given the size differential
between herself and Garcia, she equally feared Garcia. N.T. 1/27/2014, p.
41. She again demanded the borough records regarding the prerequisites
for her entry into the Borough Hall. N.T. 1/27/2014, pp. 37-48. Garcia
responded with insulting, obscene statements to Mezzacappa, and
Mezzacappa retorted with numerous derogatory remarks about Garcia’s
weight. N.T. 1/27/2014, pp. 19-30, 37-48.
On April 26, 2013, Garcia filed a private criminal complaint against
Mezzacappa alleging, among other things, harassment. The Commonwealth
charged Mezzacappa with violating 18 Pa.C.S. § 2709(a)(2), (3), (4), and
(7). On June 27, 2013, the magistrate court found Mezzacappa guilty under
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3
Garcia testified that when Mezzacappa approaches the Borough Hall, she
always refuses Mezzacappa entry and contacts the police to escort
Mezzacappa into the building. N.T. 1/27/2014, pp. 27-30. The
constitutionality of Garcia’s conduct in repeatedly denying Mezzacappa
unescorted entry into a public building is not at issue in the present matter.
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18 Pa.C.S. § 2709(a)(3).4 Mezzacappa filed a timely appeal. During a
bench trial on January 27, 2014, the court heard testimony from Garcia,
Mezzacappa, and responding Officer Carl Faulkner of the City of West
Easton’s Bureau of Police. Consistent with her averments in the criminal
complaint, Garcia testified that she feared Mezzacappa based on her
previous interactions with her at the Borough Hall. N.T. 1/27/2014, pp. 23-
30. Garcia added that her fear also arose from Mezzacappa maintaining a
website that portrays Garcia in an offensive and demeaning light and
contains photographic montages implying Mezzacappa will use a firearm
against the borough, its officials, and employees. Id. The trial court found
Mezzacappa guilty of harassment under subsection (a)(3).
Mezzacappa seeks to present the following issues for review:
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4
Following Mezzacappa’s conviction in magistrate court, the criminal docket
incorrectly stated that she was convicted of 18 Pa.C.S. § 2709(a)(2),
following a person in or about a public place, instead of 18 Pa.C.S. §
2709(a)(3), a course of conduct which serves no legitimate purpose.
Commonwealth’s Brief at 3, n. 2. After being informed of the error at the
beginning of trial, both Mezzacappa and her counsel expressly agreed to
proceed immediately to trial on subsection (a)(3). Mezzacappa did not
object to amending the charge from subsection (a)(2) to (a)(3). Nor did she
request a continuance or challenge this amendment in a post-sentence
motion. See N.T. 1/27/2014 at 11. Therefore, the procedural due process
arguments in her brief have been waived, since Mezzacappa failed to raise
them in the trial court. DeMatteis v. DeMatteis, 582 A.2d 666, 673
(Pa.Super.1990) (“Even constitutional issues such as failure to afford due
process may be waived, where issues are not raised in lower court, but are
presented for the first time on appeal”). Even if she preserved these issues,
they are devoid of merit for the reasons provided below.
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[1.] Whether the [c]ourt of [c]ommon [p]leas
committed error of law or abused its
discretion, violated Mezzacappa's constitutional
right to equal protection/due process/First
Amendment when it determined that
Defendant Mezzacappa was guilty of
Harassment under 18:2709(a)(3)? (see docket
entry, guilt determined to be 18:2709 (a)(2),
and transcript page 50 line 1 through page 53
line 8)
[2.] Whether the [c]ourt of [c]ommon [p]leas
committed error of law, abused its discretion,
or violated Ms. Mezzacappa's Constitutional
right to Due Process when it allowed a
continuance of proceeding at the time of
nonjury trial, with lawyers present after
commencement of proceedings, to change
guilty verdict from 18:2709 (a)(2), to 18:2709
(a)(3), even when the docket entries clearly
show that President Judge Steven Baratta
already corrected the discrepancy, ordering on
11/6/2013, that Mezzacappa was found guilty
of 18:2709 (a)(2)? (see transcript page 3 line
24 through page 10 line 25)
[3.] Whether the [c]ourt of [c]ommon [p]leas
committed error of law, abused its discretion,
or violated Ms. Mezzacappa's Constitutional
right to Due Process when Mezzacappa was
clearly prejudiced by this last minute
continuance at the time of nonjury trial. This
last minute continuance thereby violated
Mezzacappa's right to be defended by counsel.
Mezzacappa was unable to afford a second
appearance from her Philadelphia lawyer who
was retained in her defense, for a single
appearance at the time of nonjury trial. (see
transcript page 3 line 24 through page 10 line
25)
[4.] Whether the [c]ourt of [c]ommon [p]leas
committed error of law, abused its discretion,
violated Mezzacappa's constitutional right to
equal protection/ due process/ First
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Amendment, when it determined that
Defendant Mezzacappa was guilty of
Harassment under 18:2709 (a)(3)....'course of
conduct with no official purpose after
Mezzacappa entered into evidence a letter
from Philip Lauer, Esq., directing Mezzacappa
to obtain a policy/resolution/ordinance that has
banned Mezzacappa from entering Borough
Hall? Letter from Lauer was dated April 9,
2013. Date of incident prompting this
prosecution was April 11, 2013. (see transcript
page 47 line 9 through page 48 line 8, and
page 39 line 22 through page 40 line 1)
[5.] Whether the [c]ourt of [c]ommon [p]leas
committed error of law or abused its discretion
when it determined that witness for the
Commonwealth, West Easton Borough Clerk Jill
Garcia, was a credible witness, after Jill Garcia
conceded on record that she was the first
person to insult Mezzacappa in the presence of
Officer Faulkner on April 11,2013, by stating "I
don't have to let you in here because I fear
you" and further testified that she called
Mezzacappa ''a fucking bitch" on April 11,
2013? (see transcript page 19 line 7 - 24 and
page 31 line 4 through page 32 line 21)
Appellant’s Brief at 4-5.
In lieu of filing a 1925(a) opinion, the trial court stated the reasons for
its verdict at the conclusion of trial:
[B]ased upon the information that was presented
today, Ms. Mezzacappa[’s testimony], the postings
on [Mezzacappa’s] blog, as the witness [Garcia] for
the Commonwealth testified, and the prior
involvement, that I think that the totality of the
evidence supports a finding beyond a reasonable
doubt that Ms. Mezzacappa did engage in a course of
conduct with intent to harass, annoy, and alarm this
borough employee as well as other people involved
with West Easton and is guilty of the summary
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offense of harassment pursuant to Title 18 Pa.C.S.A.
Section 2709(a)(3).
And based upon the statute, I’m going to impose a
fine of $300 plus costs.
N.T., 1/27/14, p. 55 (quoting trial court).
Mezzacappa’s first three issues appear to raise a procedural due
process challenge to her harassment conviction. She asserts the trial court
violated her constitutional right to due process when it permitted the
Commonwealth to change the subsection under which she was charged and
previously convicted in magistrate court from subsection 2709(a)(2) to
subsection 2709(a)(3) of the harassment statute.
In reviewing a constitutional question, the appellate court's standard
of review is de novo, and its scope of review plenary. City of Philadelphia
v. Fraternal Order of Police Lodge No. 5 (Breary), 985 A.2d 1259, 1269
n. 13 (Pa.2009).
Mezzacappa’s procedural due process argument lacks merit. While
“[t]he Commonwealth [may have] acted inappropriately, [and/or] in bad
faith, by waiting until the last minute on 1/27/14, at time of trial, to attempt
to change . . .” the subsection under which she was charged, the trial court
was ready and willing to grant her a continuance in order to more fully
present a defense. Appellant’s Brief at 11. She asserts, “[t]his act caused
prejudice to Defendant, because she could not afford to have her
Philadelphia lawyer return for another court date. Mezzacappa reluctantly
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allowed the Commonwealth to change the charges, otherwise she would
have had no attorney present for the matter that was being continued.” Id.
After notice of the charges, and having been afforded an opportunity
to delay the trial, Mezzacappa willingly and voluntarily proceeded to defend
the charge of harassment under subsection (a)(3). Because the trial court
did not deprive Mezzacappa of notice and fair opportunity to be heard on the
merits of her defense, no procedural due process violation occurred.
Although she may not have been able to afford the particular attorney she
hired, Mezzacappa could have hired a different attorney or sought
appointment of counsel from the court for the second court date.
Accordingly, since the trial court did not violate Mezzacappa’s federal or
state due process guarantees, this claim lacks merit.
While couched in procedural due process language, Mezzacappa’s
fourth issue on appeal appears to challenge the sufficiency of the evidence
to convict her of harassment. She claims that she “only responded to [the]
West Easton Borough Clerk, without any vulgarity, after Jill Garcia refused to
allow Mezzacappa inside Borough Hall.” Appellant’s Brief at 10. This claim
also lacks merit.
Our standard of review for a challenge to the sufficiency of the
evidence is:
[W]hether[,] viewing all the evidence admitted at
trial in the light most favorable to the
[Commonwealth as the] verdict winner, there is
sufficient evidence to enable the fact-finder to find
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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
the 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.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations
omitted); see also Commonwealth v. Bostick, 958 A.2d 543, 560
(Pa.Super.2008) (quoting Commonwealth v. Smith, 956 A.2d 1029, 1035-
36 (Pa.Super.2008)).
Section 2709(a)(3) of the Criminal Code defines the crime of
harassment in relevant part as follows: “A person commits the crime of
harassment when, with intent to harass, annoy or alarm another, the
person: . . . engages in a course of conduct or repeatedly commits acts
which serve no legitimate purpose.” 18 Pa.C.S. § 2709(a)(3).
In general, a single act will not constitute a course of conduct under
the definition of harassment. Commonwealth v. Lutes, 793 A.2d 949
(Pa.Super.2002). In prosecutions for harassment, the introduction of
evidence of prior acts of harassment can be relevant and admissible
inasmuch as the evidence tends to prove that the alleged offense constitutes
part of an overall scheme of harassment of the prosecutrix and the evidence
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is germane to establish an element of the offense, i.e., criminal intent.
Commonwealth v. Evans, 445 A.2d 1255 (Pa.Super.1982).
To be convicted under this particular subsection of harassment, the
Commonwealth must prove beyond a reasonable doubt that Mezzacappa
intended to annoy, harass, or alarm Garcia (the clerk) through engaging in a
course of conduct or repeatedly committing acts which serve no legitimate
purpose. See 18 Pa.C.S. § 2709(a)(3). Mezzacappa directs our attention to
the day where the acrimony between she and Garcia rose to a verbal
confrontation. See Appellant’s Brief at 10. However, our focus extends
beyond the day in question to the series of events beginning in
approximately September 2010, when Garcia alleged Mezzacappa began
harassing her. See Private Criminal Complaint, 4/26/2013, at 3 (page
number supplied). Notably, the trial court found credible Garcia’s testimony
regarding Mezzacappa’s prior bad acts involving Garcia and other borough
officials.5 Mezzacappa’s disconcerting and offensive blog posts, in addition to
her verbal insults to Garcia, suffice to establish that she engaged in a course
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5
Garcia testified, “[Mezzacappa] runs a blog called West Easton Footprint
where she’s posted videos of guns and caskets next to the borough hall, and
she’s made open threats against council people . . . . [Mezzacappa refers to
me as] super tub. I’m giant Jill Garcia.” Consistent with Mezzacappa’s
pattern of calling the clerk derogatory names, Garcia further testified that,
on the date at issue, Mezzacappa stated Garcia outweighed her by 400
pounds, that she was concerned what Mezzacappa would write next on her
blog, and whether her kids would find these hurtful comments when
searching the internet for her name. N.T. 1/27/14 at 16-19.
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of conduct that served no legitimate purpose and annoyed and/or alarmed
Garcia. The Commonwealth’s evidence enabled the fact-finder to
circumstantially find that Mezzacappa intended such a result. Accordingly,
sufficient evidence existed to convict Mezzacappa of harassment.
In her last issue on appeal, Mezzacappa asserts the verdict was
against the weight of the evidence. Specifically, she claims the trial court
erred by finding Garcia, the borough clerk who filed the criminal complaint of
harassment and who testified at trial, a credible witness. This claim lacks
merit.
Our review of whether a verdict is against the weight of the evidence
is governed by Commonwealth v. Champney, 832 A.2d 403 (Pa.2003):
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of
justice. Moreover, where the trial court has ruled on
the weight claim below, an appellate court's role is
not to consider the underlying question of whether
the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on
the weight claim.
Id. at 408.
When a challenge to the weight of the evidence is predicated on the
credibility of trial testimony, appellate review of the trial court's decision is
extremely limited. Commonwealth v. Gibbs, 981 A.2d 274, 282
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(Pa.Super.2009), appeal denied, 3 A.3d 670 (Pa.2010). Generally, unless
the evidence is so unreliable or contradictory as to make any verdict based
thereon pure conjecture, appellate courts will reject these types of claims.
See, e.g., Commonwealth v. Trippett, 932 A.2d 188, 198
(Pa.Super.2007); Commonwealth v. Rossetti, 863 A.2d 1185, 1191
(Pa.Super.2004).
Mezzacappa essentially asks this Court to reassess the credibility of
Garcia’s testimony and her own testimony. It is well settled, however, that
this Court cannot substitute its judgment for that of the trier of fact.
Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super.2000). “[I]t is for
the fact-finder to make credibility determinations, and the finder of fact may
believe all, part, or none of a witness’s testimony.” Commonwealth v. Lee,
956 A.2d 1024, 1029 (Pa.Super.2008). The trial court heard conflicting
testimony from Mezzacappa and Garcia. Therefore, since the trial court was
free to believe some, all, or none of the testimony presented, it acted within
its discretion in crediting Garcia’s testimony over that of Mezzacappa’s
testimony. Mezzacappa’s dissatisfaction with the trial court’s credibility
determination simply does not afford her a basis for relief. Accordingly, we
discern no error.
Judgment of sentence affirmed.
President Judge Gantman joins in Memorandum.
Judge Wecht concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2014
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