J-S11020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MARSHA CHISLO

                            Appellant                    No. 856 MDA 2014


              Appeal from the Judgment of Sentence April 2, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-SA-0000051-2014


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 24, 2015

        Marsha Chislo appeals from the judgment of sentence entered on April

2, 2014, in the Court of Common Pleas of Luzerne County following her

conviction of two counts of harassment as a summary offense.1           She was

sentenced to pay an aggregate fine of $600.00. In this timely appeal, Chislo

lists six claims in her statement of questions presented for review. However,
                                               2
in her brief, she argues only four issues.         After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.
____________________________________________


1
    18 Pa.C.S. § 2709(a)(3).
2
  In this regard, we remind counsel of the Rules of Appellate Procedure that
require the argument section of the brief to be divided in as many parts as
there are questions to be argued. See Pa.R.A.P. 2119(a). Also, no question
will be considered unless it is stated in the statement of questions involved
or fairly suggested thereby. See Pa.R.A.P. 2116. We will match Chislo’s
arguments to the statement of questions as best as we are able. However,
(Footnote Continued Next Page)
J-S11020-15



      Chislo’s initial six issues are:

      1) Whether there was sufficient evidence to establish intent to
      harass when the Court found, as a fact, that [Chislo] was doing
      what she deemed proper to protect her property?

      2) Whether the evidence supported, beyond a reasonable doubt,
      any threat by [Chislo] to burn any structures (barn, camper or
      garage), when the Commonwealth’s evidence established the
      threats were allegedly made solely by [Chislo’s] husband and not
      by [Chislo]?

      3) Whether the lower court’s basing its [credibility]
      determination on the result of pending litigation between
      [Chislo] and the Dunns was an abuse of discretion?

      4) Whether the lower court made an error in equating
      “legitimate purpose” as being determined by the winner or loser
      of the collateral litigation between [Chislo] and the Dunns?

      5) Whether the lower court Judge should have recused herself
      and revealed that she knew a “Mr. Terry Best”, who was a
      member of her election committee, and who also was the zoning
      officer involved in collateral zoning litigation adverse to [Chislo]?

      6) Whether the court’s reference regarding the prior and pending
      litigation between [Chislo], her husband and the Dunns, as
      creating “huge [credibility] issue” was based upon a hasty,
      incomplete review of the dockets since the outcome, i.e. winner
      or loser, is not relevant to the existence of a legitimate purpose?

Appellant’s Brief at 1-2.

      The factual history of this matter is well known to the parties, so we

rely upon the trial court’s recitation of the facts as set forth on pages 2-6 of

the Pa.R.A.P. 1925(a) opinion.
                       _______________________
(Footnote Continued)

any argument we cannot so align will be considered waived. Such advocacy
is frowned upon as it makes an effective review more difficult.



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      The first claim substantively addressed in Chislo’s brief asserts there

was insufficient evidence to support the conviction; that the Commonwealth

failed to prove she possessed the requisite intent to harass, annoy or alarm;

and that the trial court specifically found she acted in furtherance of a

legitimate purpose. Her third argument, as presented in her brief, asserts

there was insufficient evidence to support her convictions in that the

Commonwealth’s testimony was vague in identifying dates of the alleged

harassment as well as in detailing specific acts.    We believe these two

argued sections align with questions 1 and 2.

      Initially, we note that, in relevant part, the crime of harassment is

defined as follows:

      (a) Offense defined.--A person commits the crime of
      harassment when, with intent to harass, annoy or alarm
      another, the person:

         (3) engages in a course of conduct or repeatedly commits
         acts which serve no legitimate purpose.

18 Pa.C.S. § 2709(a)(3).     “An intent to harass may be inferred from the

totality of the circumstances.”   Commonwealth v. Lutes, 793 A.2d 949,

961 (Pa. Super. 2002).

      Further, our scope and standard of review for challenges to the

sufficiency of the evidence is as follows,

      “Whether sufficient evidence exists to support the verdict is a
      question of law; our standard of review is de novo and our scope
      of review is plenary.” Commonwealth v. Murray, 83 A.3d 137,
      151 (Pa. 2013). We review the evidence in the light most
      favorable to the verdict winner to determine whether there is


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      sufficient evidence to allow the jury to find every element of a
      crime beyond a reasonable doubt. Commonwealth v. Cahill,
      95 A.3d 298, 300 (Pa. Super. 2014).

         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 finder 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.

      Id. (citation omitted).

Commonwealth v. Tejada, 107 A.3d 788, 792-93 (Pa. Super. 2015).

      To the extent that these two arguments present a general challenge to

the sufficiency of the evidence, we discern no abuse of discretion or error of

law on the part of the trial court. The trial court determined:

      The testimony presented at the summary appeal clearly
      established that there were multiple actions, comments and
      gestures by Marsha Chislo done with the intent to harass, annoy,
      or alarm Anna and Jeffrey Dunn. These actions, based upon the
      credible testimony of record, serve no legitimate purpose. As
      noted in 18 Pa.C.S.A. § 2709(f), the course of conduct is a
      pattern of actions composed of one or more actions, however
      short, evidencing a continuity of conduct. The trial court found
      credible the testimony of record which indicated ongoing daily
      actions that were noted by Mr. and Mrs. Dunn through notes and
      photographs as to the daily interaction with Marsha Chislo.

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       These ongoing actions evidenced a continuity of conduct and
       served no legitimate purpose. These actions include the incident
       in which Mrs. Dunn was blocked from getting her mail; constant
       gestures made by Mrs. Chislo in a thumbs down motion; the
       confrontation when Mrs. Chislo yelled obscenities at Mrs. Dunn
       including language that she performed sexual acts to members
       of the Council and calling her white trailer trash; constant
       interaction and confrontation each time the property line of
       Marsha Chislo was approached by any member of the Dunn
       family; with such actions included yelling, making sounds,
       screaming, threats to burn down the camper and threats to burn
       down the garage. The trial court found the testimony of record
       as provided by three (3) eyewitnesses to the actions credible.

Trial Court Opinion, 9/5/2014, at 9-10.

       We have read the notes of testimony from the summary trial and have

reviewed the complaints filed by the Dunns, including the multi-page list

detailing various activities described above over the course of time. Based

on our review, there is ample evidence to support the convictions.

       Chislo has also specifically challenged certain aspects of the evidence,

which we will now address.          She argues that the evidence showed that it

was her husband, Joe Lakowski, who made threats against the Dunns’

garage/barn3 and camper, not her. Testimony belies this claim. See N.T.

Trial, 4/2/2014, at 43-46.            Jeffrey Dunn testified that Marsha Chislo

threatened to burn both the garage and their camper. Therefore, this aspect

of Chislo’s claim must fail.
____________________________________________


3
  Our review of the notes of testimony leads us to believe that what was
referred to as the barn and garage are the same structure.




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       Next, she claims the evidence was merely “vague general testimony …

that did not have any specific dates or specific activities that would amount

to harassment.” Appellant’s Brief at 11. The evidence refutes this allegation.

There were two private criminal complaints filed in this matter. In the first,

Anna Dunn was the complainant and she alleged Chislo had taken actions

from 2008 to 2011, including acts of petty vandalism, verbal confrontations,

threatening gestures all undertaken with the intent to harass her.          While

Chislo is correct that Anna Dunn did not correlate specific acts to specific

dates,4 she testified to acts that correlate to acts included in the first

complaint and which took place over the course of years.          The trial court

notes sufficient actions taken by Chislo or attributable to Chislo by fair

inference to support the conviction regarding the first complaint.

       Both Jeffrey and Anna Dunn are the complainants on the second

complaint, dated May, 2013.           This complaint alleges two actions.   First,

Chislo made threatening comments about another garage fire.            As noted

previously, the Dunns’ garage had burned, just after a court hearing at

which Lakowski had warned something would happen to it.              Second, the

____________________________________________


4
  It is important to note that Chislo is not arguing she was unable to defend
herself based upon the vague nature of the timing of her actions. Our
review of the certified record demonstrates the specific dates of any of the
allegations were immaterial to her defense, which consisted partly of the
claim her actions had a legitimate purpose and partly of the claim that the
Dunns had mischaracterized her actions.




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complaint alleges that on May 8, 2013, Chislo was alleged to have

threatened to burn the Dunns’ camper.       In support of this claim, Jeffery

Dunn testified that Chislo threatened to burn the camper.      While he could

not provide a specific date for the threat, he believed the threat was made in

May 2013.

      Finally, Chislo argues that the trial court determined she had a

legitimate purpose in whatever actions she undertook.      This aspect of the

sufficiency claim is based upon Chislo’s assertion that any actions she took

were in furtherance of resolving her zoning dispute with the Dunns.         To

support this claim, she has quoted the trial court from both the Pa.R.A.P.

1925(a) Opinion and from the decision rendered from the bench.            See

Appellant’s Brief at 9.   In both of the quotes, the trial judge stated she

accepted Chislo had acted in what Chislo believed was in furtherance of

resolving her zoning dispute.      While the trial judge accepted Chislo’s

subjective belief, the court’s remarks do not equate to a determination that

her subjective belief was a reasonable belief, or that Chislo acted without the

requisite intent.   Indeed, in the Pa.R.A.P. 1925(a) Opinion, the trial court

stated:


      Even if [Chislo] was doing what she deemed proper to protect
      her property, it does not mean that there was insufficient
      evidence presented to establish intent to harass. What [Chislo]
      deems proper and what is proper is a matter for this Court’s
      decision.

Trial Court Opinion, 9/5/2014, at 8-9.

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         Accordingly, contrary to Chislo’s assertions, the trial court did not

agree that threatening to burn down the Dunns’ garage and camper, acts of

petty vandalism and repeated confrontations with threatening gestures

constitutes actions legitimately taken in furtherance of the resolution of the

zoning dispute.

         The trial court found the evidence presented to be both credible and

sufficiently detailed to support the convictions.         We find no error in that

determination.

         Chislo’s questions 3, 4, and 6 all address various aspects of the

collateral litigation involving the parties. These arguments fit loosely under

the claim raised in the argument section of the brief entitled:

         The Court made an error in asserting the winner or loser in
         collateral litigation involving [Chislo] would determine whether
         [Chislo] was credible in the criminal matter.

Appellant’s Brief at 10.5

         These arguments are not well developed, but we interpret this section

as   a    claim   that   the    trial   judge    improperly   based   her   credibility

determinations and conclusions about whether Chislo’s actions served a


____________________________________________


5
 Chislo appears to regard this as the trial court’s failure to properly suppress
evidence. No motion to suppress was filed. We will address this as simply
an evidentiary ruling at trial. “Our standard of review relative to the
admission of evidence is for an abuse of discretion.” Commonwealth v.
Wantz, 84 A.3d 324, 336 (Pa. Super. 2014) (citation omitted).



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J-S11020-15


legitimate purpose on who prevailed in the collateral litigation. We believe

this argument is based upon an improper recitation of the evidence.

       During the trial, reference was made to the zoning violation charges

filed against the Dunns.         Both parties asserted victory in that collateral

action.6   Because the parties had raised the issue, the trial court sought

clarification of the resolution, stating, “I’m going to pull the Superior Court

docket and whoever is not being truthful with me is going to have some

issues now.”       N.T. Trial, 4/2/2014, at 26.        The trial court was not

conditioning the outcome in the instant matter upon victory in the collateral

matter.     The trial court was attempting to determine who was being

untruthful. The fact that the trial court did not improperly base its decision

in this matter on the outcome of a collateral matter is demonstrated by

these comments of the trial court:

       It’s abundantly clear to me from the civil filings which are all
       very new, quite frankly, the ones that I looked at, that the
       Dunns are suing Pittston Township and Mericle and Ms. Chislo in
       an action that was just filed in February; that in February Ms.
       Chislo is filing an action against Pittston Township, Terry Best,
       Jeffrey Dunn, and that has to do with the pole barn being put up
       on the property. This has to do with damage to the property
       that the Dunns are claiming came from Mericle and/or in
       conjunction with Ms. Chislo. So there’s lots of issues up on the
       property that people are spending obviously large amounts of
       money litigating at this time as to the use of the land.
____________________________________________


6
  Chislo’s counsel, who was not involved in the collateral action, had
inadvertently asserted the zoning matter had been a civil matter appealed to
the Superior Court. In fact, such zoning matters are considered criminal
matters, and are appealed to the Commonwealth Court.



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        I do not have anything – there’s nothing definitive – no one has
        won anything in civil court. So I’m going to start by saying that
        for the majority of this. There are other lawsuits with regard to
        Ms. Chislo that I didn’t pull involving people that I don’t know,
        but these are the two that are directly related; they’re new.
        There’s nothing won or old. So that representation is absolutely
        inaccurate.

        Secondly, I don’t have anything from Commonwealth Court as of
        this point either. And with regard to the Superior Court, they
        were still looking and could not find anything. So again, I don’t
        know what the status of that is, but I will allow questions
        because this is a criminal proceeding at this point. And we will
        continue now with the case and with the criminal proceeding
        that’s in front of us.

N.T. Trial, 4/2/2014, at 31-33.

        The trial judge noted that resolution of the zoning violation matter

could not be immediately determined. Accordingly, not only is there nothing

in the trial court’s statement to indicate it would base the outcome of the

instant matter on the outcome of the collateral matter, it would have been

impossible for the trial court to do so because the outcome was not

independently verified. Chislo is not entitled to relief on these claims.

        Finally, Chislo argues the trial judge should have recused herself

because she “knew the local zoning officer who was involved in the zoning

litigation adverse to [Chislo].        The zoning officer was a member of the

judicial election committee of the trial judge.”    Appellant’s   Brief     at   13.7

____________________________________________


7
    This is Issue 5 as listed in Chislo’s questions presented for review.



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Specifically, Chislo claims that Terry Best, allegedly a zoning officer, who is a

defendant in a collateral action filed by Chislo, was also a member of the

trial judge’s election committee.        However, Chislo has provided no

supporting evidence to support any aspect of this aallegation.           A bald

allegation made in a brief does not constitute proof. See Commonwealth

v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (Appellate court may only

consider evidence that is part of the certified record).     In addition to the

failure to provide supporting evidence to claim, Chislo has also failed to

develop the argument with either citation to the certified record or to any

law that might support her claim.

      Further, the record reveals that after Terry Best’s name was

mentioned as a defendant in one of Chislo’s collateral lawsuits, Judge

Polachek Gartley told the parties that she knew Mr. Best. See N.T. Trial

4/2/2014, at 85.    However, no one objected to Judge Polachek Gartley’s

continuing participation in the trial. Further, no one sought any clarification

regarding Judge Polachek Gartley’s relationship with Best.       Because Chislo

failed to object at trial, the issue has been waived. See Reilly by Reilly v.

Southeastern Pennsylvania Transp. Authority, 479 A.2d 973 (Pa.

Super. 1984).    Moreover, at page 11 of her Pa.R.A.P. 1925(a) Opinion,

Judge Polachek Gartley specifically stated, “The presentation of the pending

suit involving Terry Best did not in any way effect the Trial Court’s ruling on




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the charges filed against [Chislo] by Mr. and Mrs. Dunn.”8      Accordingly,

Chislo is not entitled to relief on this issue.

       Based upon the foregoing review, we find no errors of law or abuse of

discretion on the part of the trial court.

       Judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




____________________________________________


8
  We also note that it appears that Mr. Best was named in his official
capacity as a zoning officer, not personally.



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