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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


1  Appellant testified that she smelled hairspray and marijuana “emanating
from the woods.” N.T., 10/4/17, at 40, 42.
____________________________________
* 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.



____________________________________________


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
____________________________________________


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.




____________________________________________


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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