J-A14040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRED POLISKY,

                            Appellant                No. 1170 MDA 2015


             Appeal from the Judgment of Sentence June 29, 2015
               in the Court of Common Pleas of Luzerne County
              Criminal Division at No.: CP-40-CR-0002034-2014

BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 03, 2016

        Appellant, Fred Polisky, appeals from the judgment of sentence

imposed on June 29, 2015, following his jury conviction of terroristic

threats.1 We affirm.

        We take the underlying factual and procedural history in this matter

from the trial court’s December 22, 2015 opinion and our independent

review of the certified record.

              The incident . . . occurred on April 10, 2014[,] during an
        Edwardsville Borough Council Meeting.        [Appellant] was in
        attendance at the meeting and he threatened to kill Officer
        Michael Lehman, a police officer of the Edwardsville Borough
        Police Department.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa. C.S.A. § 2706(a)(1).
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             At the trial[2], various witnesses testified as to what
       occurred. Mr. David Stochla, the Borough Council President of
       the Edwardsville Borough Council[,] testified that while he was
       presiding over the Borough Council meeting, during the public
       comment session, [Appellant] threatened to kill Officer Michael
       Lehman [if Officer Lehman stepped foot on his property. (See
       N.T. Trial, 4/22/15, at 48)]. In addition, Officer John Fronzoni,
       also a police officer of the Edwardsville Borough Police
       Department, who was also in attendance at the Edwardsville
       Borough Council meeting on the evening of April 10, 2014, heard
       [Appellant] threaten to kill Officer Michael Lehman [if he stepped
       foot on Appellant’s property. (See id. at 57).] Officer Fronzoni
       also testified that immediately after the public comment session
       where the threat was made, [Appellant] repeated the threat to
       Officer Fronzoni at least two additional times.

             Officer Lehman also testified as to the events of April 10,
       2014. [He] testified that he had professional interactions with
       [Appellant] prior to April 10, 2014. He became aware of the
       direct threats immediately after the council meeting. He did not
       attend the meeting, however, he was advised as to the threat
       from multiple sources. Officer Lehman became concerned as to
       the threat based on past incidents with [Appellant]. The officer
       was concerned for himself and his family and took the threat
       seriously.

             [Appellant] testified that Officer Lehman was a corrupt cop
       and that on more than one occasion Officer Lehman has
       surveyed [Appellant’s] house and shined a light in his eyes and
       into the house. [Appellant] characterized Officer Lehman as a
       coward and a criminal wearing a badge. [Appellant] admitted
       that he did say that if Officer Lehman stepped foot on his
       property, he would kill him. He explained that he did so as a
       figure of speech and wanted to warn Officer Lehman. The jury
       convened and ultimately found [Appellant] guilty of [t]erroristic
       threats.


____________________________________________


2
  After the first jury in this matter was unable to reach a verdict, the trial
court declared a mistrial. The Commonwealth called this matter for the next
term and the court listed it for the April 2015 term. On April 22, 2015, a
jury was selected and Appellant’s second trial commenced.



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(Trial Court Opinion, 12/22/15, at 2-3).

      On June 29, 2015, the trial court sentenced Appellant to not less than

four nor more than eight months of incarceration in the Luzerne County

Correctional Facility, to be followed by a three-year term of probation.

Appellant did not file a post-sentence motion.     On July 2, 2015, Appellant

filed a timely notice of appeal. On July 24, 2015, Appellant filed a statement

of errors complained of on appeal. See Pa.R.A.P. 1925(b). On December

22, 2015, the trial court entered its opinion. See Pa.R.A.P. 1925(a).

      Appellant raises two issues on appeal.

      1. Whether the [t]rial [c]ourt erred by refusing to instruct the
      jury with respect to self-defense (non-deadly force)?

      2.   Whether the [t]rial [c]ourt erred by determining that
      [Appellant’s] speech, i.e. attempting to raise an issue of police
      misconduct at a public hearing, was not protected by the
      Fourteenth Amendment to the United States Constitution?

(Appellant’s Brief, at 3).

      In his first issue, Appellant claims that the trial court erred in refusing

to instruct the jury regarding self-defense. (See id. at 16-18). Specifically,

Appellant argues that the evidence supports self-defense because he

testified that he made his statement:

      in self-defense due to his belief that Officer Lehman was a threat
      to him and his family; including the following instances:

         1. Officer Lehman was shining a spotlight into his house
         while he had his grandchildren [visiting];

         2. Officer Lehman had falsely arrested his wife and as a
         result thereof, his wife was afraid to drive a car;

         3. Officer Lehman had falsely arrested [Appellant].

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(Id. at 16). We disagree.

      Preliminarily, we note that Appellant waived his first issue for failure to

raise it before the trial court.     A review of the trial transcript reveals that

Appellant did not object to the lack of self-defense instruction.             See

Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005) (“[U]nder

Criminal Procedural Rules 603 and 647(B), the mere submission and

subsequent denial of proposed points for charge that are inconsistent with or

omitted from the instructions actually given will not suffice to preserve an

issue, absent a specific objection or exception to the charge or the trial

court’s ruling respecting the points.”). Accordingly, he has waived this issue.

      Moreover, Appellant has failed to develop his argument. In his brief,

Appellant cites two cases, which he argues would require the court to issue a

self-defense instruction because, he alleges, there was evidence that he

acted in self-defense. (See Appellant’s Brief, at 16-17). However, neither

case is applicable here because Appellant did not use force against an

imminent threat, but rather threatened to kill a police officer who was not

even present.    See Commonwealth v. Rittle 428 A.2d 168, 170 (Pa.

Super. 1981) (concluding that appellant was entitled to use of force in self-

protection charge where evidence demonstrated victim was initial aggressor

and   put   appellant    in   fear     of   imminent    serious   bodily   injury);

Commonwealth v. Bailey, 471 A.2d 551, 553 (Pa. Super. 1984)

(concluding that jury should have been instructed on self-defense where




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evidence demonstrated that simple assault on victim was self-defense

reaction to victim’s assault on defendant).

       Here, Appellant has not provided, nor has our review of case law

revealed, any legal authority requiring the trial court to issue a self-defense

instruction for a charge of terroristic threats. (See Appellant’s Brief, at 16-

18).    Furthermore, we are not persuaded that Appellant was ever in

imminent fear of serious bodily injury where he merely claims that Officer

Lehman shined a spotlight into his house and allegedly had falsely arrested

Appellant and his wife. (See id. at 16); Rittle, supra at 170. Accordingly,

Appellant’s first issue, even if properly preserved, would not merit relief.

       In his second issue, Appellant claims that the trial court erred in

denying his motion for a judgment of acquittal based upon free speech

protections. (See Appellant’s Brief, at 19-20). Specifically, he argues that

his comments should have been protected because he was raising an issue

of police misconduct at a public meeting, which he alleges is protected

speech under Watts v. United States, 394 U.S. 705 (1969).             (See id.).

We disagree.3




____________________________________________


3
  Preliminarily, we note that Appellant has failed to develop properly his
argument. In his three-paragraph argument section, he has cited only
boilerplate law and has failed to apply the law to the facts and circumstances
of this case. See Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super.
2012), appeal denied, 69 A.3d 601 (Pa. 2013).



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      Our standard of review of an order denying a motion for judgment of

acquittal is well settled.

             A motion for judgment of acquittal challenges the
      sufficiency of the evidence to sustain a conviction on a particular
      charge, and is granted only in cases in which the Commonwealth
      has failed to carry its burden regarding that charge.

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light 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
      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.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually 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. Hutchinson, 947 A.2d 800, 805-06 (Pa. Super. 2008),

appeal denied, 980 A.2d 606 (Pa. 2009) (citations and emphasis omitted).

      “Under section 2706, one commits terroristic threats either by

threatening a crime of violence with specific intent to cause terror

(subsection 1), or by threatening anything that causes terror with reckless

disregard of the risk of causing terror (subsection 3).” Commonwealth v.




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Walker, 836 A.2d 999, 1001 (Pa. Super. 2003), appeal denied, 853 A.2d

361 (Pa. 2004) (citing 18 Pa.C.S.A. § 2706(a)).

      Threatening speech, such as that encompassed within the crime of

terroristic threats, may be prevented without infringing upon constitutional

rights.

      [T]he right to free speech is not absolute, and certain well-
      defined, limited classes of speech may be prevented and
      punished without raising constitutional problems. . . . Only true
      threats fall within that group of expressions, such as fighting
      words, which are not constitutionally protected pure speech. A
      true threat is one which on its face and in the circumstances in
      which it is made is so unequivocal, unconditionally immediate
      and specific as to the person threatened, as to convey a gravity
      of purpose and imminent prospect of execution.

Commonwealth v. Baker, 722 A.2d 718, 721–22 (Pa. Super. 1998),

affirmed, 766 A.2d 328 (Pa. 2001) (citations and quotation marks omitted).

      Here, we agree with the trial court’s conclusion that Appellant’s

statement, that he would kill Officer Lehman if he stepped onto his property,

constituted a true threat where he made a specific threat against Officer

Lehman, which Officer Lehman testified he took seriously. (See N.T. Trial,

4/22/15, at 48, 57, 70, 81-82).     Appellant’s statement does not simply

constitute raising a matter of police misconduct at a public meeting.     We

agree with the trial court’s conclusion that Appellant’s statement is

distinguishable from the political speech protected under Watts, supra

because it was specific to Officer Lehman, was not expressly conditional, and

the listeners took the threats seriously.     (See Trial Ct. Op., at 6-8)

(“[Appellant] threatened to kill Officer Lehman.        That is clear and

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J-A14040-16



unequivocal; he cannot now hide behind a constitutional protection which

was enacted so that the polis could articulate anti-government sentiment

without the prospect of retaliation.”).     Accordingly, we conclude that,

because the statement was not protected speech, the Commonwealth

presented sufficient evidence to establish the elements of terroristic threats

beyond a reasonable doubt, and therefore the trial court did not err in

denying Appellant’s motion for judgment of acquittal.      See Hutchinson,

supra at 805-06; Walker, supra at 1001. Appellant’s second issue does

not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2016




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