J-S22037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    ANTHONY P. CATANZARO                         :
                                                 :
                       Appellant                 :   No. 1610 MDA 2018

        Appeal from the Judgment of Sentence Entered August 29, 2018
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0002139-2017


BEFORE:      SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                                FILED: MAY 1, 2019

        Anthony P. Catanzaro (Catanzaro) appeals from the judgment of

sentence imposed following his bench conviction of the summary offense of

harassment.1 We affirm.

        We derive the relevant facts and procedural history of this case from our

independent review of the record. On April 27, 2017, at 1:30 p.m., Barbara

Harned (Harned) was working in the Luzerne County Courthouse as executive

secretary for the Honorable Tina Polachek Gartley.              Catanzaro and his

girlfriend, Elizabeth Harvey (Harvey), approached the chambers and rang the

doorbell.    Catanzaro informed Harned that they had filed an appeal and

attempted to give her paperwork.               Harned refused to accept it because

____________________________________________


1   18 Pa.C.S. § 2709(a)(1).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S22037-19


Catanzaro was not a party to any pending case and he had been told that

paperwork could not be accepted from him. Catanzaro then came very close

to Harned and began yelling and screaming accusations regarding corruption

at her. Catanzaro shoved Harned and punched her in the chest. Harned told

Catanzaro to back off and made her way around him into the hallway where

he continued to push, shove and yell at her. The incident ended when Maurice

Lamoreux (Lamoreux) of the Luzerne County Sheriff’s Department intervened

and ordered Catanzaro to leave.

      After a bench trial, Catanzaro was found guilty of harassment and was

sentenced to a term of not less than one nor more than ninety days’

incarceration and was eligible for immediate parole.         This timely appeal

followed.

      Catanzaro first claims that the trial court erred in failing to declare a

mistrial. (See Catanzaro’s Brief, at 12-14). He argues that Lamoreux was

not the sheriff’s deputy who intervened in the incident with Harned and that

Lamoreux, therefore, perjured himself by testifying that he was involved.

(See id.). However, Catanzaro never moved at trial for a mistrial or even

objected to Lamoreux’s testimony on the basis of the alleged perjury or on

any other grounds. (See N.T. Trial, 6/29/18, at 38-43).

      It is well-settled that a defendant’s failure to request a remedy such as

a mistrial constitutes a waiver of the claim and it is not preserved for appellate

review.     See Commonwealth v. Sandusky, 77 A.3d 663, 670–71 (Pa.


                                      -2-
J-S22037-19


Super. 2013). Because Catanzaro did not move for a mistrial or otherwise

object, his claim that the court erred in failing to grant a mistrial is not

preserved for our review.

       Catanzaro next challenges the sufficiency of the evidence supporting his

conviction.     (See Catanzaro’s Brief, at 14-17).     He concedes that the

Commonwealth established that he physically struck Harned but contends that

it failed to prove that he did so with the intent to harass, annoy or alarm her.

(See id.).2

       “A person commits the crime of harassment when, with intent to harass,

annoy or alarm another, the person: (1) strikes, shoves, kicks or otherwise

subjects the other person to physical contact, or attempts or threatens to do

the same[.]” 18 Pa.C.S. § 2709(a)(1). “An intent to harass may be inferred

from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d

719, 721 (Pa. Super. 2013) (citation omitted).

       Our review of the record confirms that Catanzaro’s actions constituted

harassment. Specifically, he angrily confronted and screamed at Harned and

continued to do so after she told him that he was too close and needed to


____________________________________________


2 “Our standard of review is de novo, and our scope of review is plenary,
because: a claim challenging the sufficiency of the evidence is a question of
law . . . When reviewing a sufficiency claim the court is required to view the
evidence in the light most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences to be drawn from the
evidence.” Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa. Super.
2018), appeal denied, 200 A.3d 4 (Pa. 2019) (citation omitted).


                                           -3-
J-S22037-19


back off. (See N.T. Trial, at 4-5). Catanzaro also pushed and shoved Harned

while yelling various allegations regarding corruption at her. (See id. at 6-

8). He hit Harned three or four times in the chest with his fist, hard enough

to result in contusions and bruising. (See id.). These acts, taken together,

demonstrate Catanzaro’s intent to harass, annoy or alarm Harned.            His

sufficiency claim, therefore, merits no relief.

      Lastly, Catanzaro challenges the discretionary aspects of his sentence,

arguing that it is harsh and excessive in light of the nature of the offense and

his advanced age. (See Catanzaro’s Brief, at 18-21). He asserts that the

severe sentence constitutes punishment for his choice to proceed with a bench

trial instead of pleading guilty. (See id. at 20).

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation

omitted). “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence.” Id.

(citation omitted). “We conduct this four-part test to determine whether: (1)

the appellant preserved the issue either by raising it at the time of sentencing

or in a post[-]sentence motion; (2) the appellant filed a timely notice of

appeal; (3) the appellant set forth a concise statement of reasons relied upon

for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the

appellant raises a substantial question for our review.” Id. (citation omitted).


                                      -4-
J-S22037-19


       Instantly, the record reflects that Catanzaro did not meet the first prong

of this test because he failed to raise his claims challenging the court’s

sentence as harsh and excessive either at sentencing or in a post-sentence

motion. Because he has not satisfied the four-part test necessary to invoke

this Court’s jurisdiction, his challenge to the discretionary aspects of his

sentence do not merit relief.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2019




____________________________________________


3 Furthermore, with respect to Catanzaro’s claim that the trial court failed to
consider mitigating factors, such as his advanced age, we note that it was in
possession of a pre-sentence investigation report. “Where the sentencing
judge had the benefit of a pre-sentence report, it will be presumed that he
was aware of relevant information regarding appellant’s character and
weighed those considerations along with the mitigating statutory factors.”
Conte, supra at 1177 (citation omitted).

                                           -5-
