J-S86006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LISA BASINGER                              :
                                               :
                      Appellant                :   No. 1666 WDA 2015

            Appeal from the Judgment of Sentence August 12, 2015
               In the Court of Common Pleas of Greene County
             Criminal Division at No(s): CP-30-CR-0000173-2014


BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 06, 2017

        Appellant Lisa Basinger appeals from the judgment of sentence

entered by the Court of Common Pleas of Greene County after a jury

convicted Appellant of harassment and disorderly conduct.1 Appellant claims

there was insufficient evidence to support her convictions and argues that

the trial court should have granted a mistrial or a curative instruction based

on the prosecutor’s improper comment in closing argument. We affirm.

        Appellant was originally charged with burglary, criminal trespass,

harassment (graded as a third degree misdemeanor), harassment (graded

as a summary offense), and disorderly conduct. On May 20, 2015, the trial

court conducted Appellant’s jury trial in which the following testimony was
____________________________________________


1
   18 Pa.C.S. § 2709(a)(4) (misdemeanor), 18 Pa.C.S. § 5503(a)(1)
(summary offense), respectively.



*Former Justice specially assigned to the Superior Court.
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presented.     In the evening hours of June 12, 2014, Appellant went to

retrieve her estranged husband’s truck from the home of her husband’s

paramour, Krista Bedilion. After entering the home without knocking on the

front door, Appellant encountered Krista’s daughter, sixteen-year-old Paige

Bedilion, and began to yell profanities at her. Paige testified that Appellant

called her an “F’ing B” and “all kinds of other derogatory names for females.”

N.T. Trial, 5/20/15, at 51. The Bedilions’ Rotweiler, Shaya, pushed against

Appellant in an attempt to prevent her from progressing further into the

home.     Appellant threatened that if Paige would not take the dog away,

Appellant would kill the dog.

       When Krista entered the room, Appellant began repeating the

profanities.   Paige testified that Appellant did not seem very focused, but

was “cussing at everyone in the room.”       N.T. at 52.   In addition, Paige

indicated that Appellant lunged at her, perhaps in attempt to scare her.

Thereafter, Paige indicated that her mom, Krista, pushed Appellant out the

door and shut it. Paige then heard someone bang and kick the front door

with force and listened as Appellant continued to scream.         After Paige

observed Appellant walk around the yard and fall down a few times, Paige

saw another individual escort Appellant to a car, which left the scene. Krista

called the police. Neither the Commonwealth nor the defense called Krista

to testify at trial.

       Appellant testified on her own behalf, stating that she went to Krista

Bedilion’s home, simply to retrieve her estranged husband’s truck. Appellant

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was accompanied by her son, Steven, and his friends, Elijah and Ryan.

Appellant shared that she has Guillain-Barre disease, a neuromuscular and

nerve condition that affects her ambulation.

      After Appellant discovered that her husband’s truck was blocked in by

another vehicle, Elijah helped Appellant walk to the door of the Bedilion

home. Appellant admitted to opening the door without knocking. Appellant

admitted that when she initially saw Paige open the door, she mistakenly

thought Paige was Krista Bedilion. Appellant asserted that she showed Paige

the truck keys and said “I don’t want any problems here, I just need that

white car moved so that I can get that truck out of there, and I will be

gone.” N.T. at 125. Appellant asserted that Paige slammed the door in her

face, causing Appellant to simply turn around and leave the premises.

Appellant admitted to saying “I don’t know why that F bitch slammed the

door in my face, all I want is my truck.”        N.T. at 126.   Appellant denied

entering the home, screaming obscenities at Paige, or seeing a dog at the

Bedilion residence.   Appellant admitted that she had not been taking her

prescribed Xanax at the time of this incident.

      At the conclusion of the trial, the jury acquitted Appellant of burglary

and criminal trespass, but convicted her of misdemeanor harassment of

Paige Bedilion. As the parties had agreed that the trial court would resolve

the summary charges, the trial court acquitted Appellant of summary

harassment of Krista Bedilion but convicted Appellant of summary disorderly

conduct.   On August 12, 2015, the trial court sentenced Appellant to fifteen

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days incarceration to be followed by forty-five days of house arrest to be

followed by ten months probation.      On August 21, 2016, Appellant filed a

post-sentence motion, which the trial court denied on October 9, 2015.

Appellant filed a timely appeal and complied with the trial court’s direction to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

      [1.] Does an angry profane outburst of “fucking bitch” or other
      unspecified profanity, made by a separated wife blocked from
      retrieving her truck, said to her husband’s paramour in the
      presence of the paramour’s 16-year-old child at the doorstep of
      the paramour’s house, after the wife asks them to move the car
      that blocks the truck, constitute a crime of harassment
      committed with intent to harass, annoy, or alarm another by
      communication of lewd, lasvicious, or obscene words in violation
      of 18 Pa.C.S. 2709(a)(4)?

      [2.] Did the trial court err in failing to grant a mistrial or
      corrective instructions when the prosecuting attorney informed
      jurors at closing argument that she did not call the eyewitness’s
      mother because she would have testified exactly like her
      daughter?

Appellant’s Brief at 11.

      First, we will address Appellant’s challenge to the sufficiency of the

evidence supporting her harassment conviction. Our standard of review is

as follows:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every


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        element of the crime has been established beyond a reasonable
        doubt, the sufficiency of the evidence claim must fail.

              The evidence established at trial need not preclude every
        possibility of innocence and the fact-finder is free to believe all,
        part, or none of the evidence presented. It is not within the
        province of this Court to re-weigh the evidence and substitute
        our judgment for that of the fact-finder. The Commonwealth's
        burden may be met by wholly circumstantial evidence and any
        doubt about the defendant's guilt is to be resolved by the fact[-
        ]finder unless the evidence is so weak and inconclusive that, as
        a matter of law, no probability of fact can be drawn from the
        combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

        In this case, the jury convicted Appellant of misdemeanor harassment

under Subsection 2709(a)(4) of the Crimes Code which provides that “[a]

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

or alarm another, the person … communicates to or about such other person

any lewd, lascivious, threatening or obscene words, language, drawings or

caricatures.” 18 Pa.C.S. § 2709(a)(4).

        While Appellant admits calling Paige Bedilion a “fucking bitch,”

Appellant argues that this comment does not warrant a harassment

conviction as she did not communicate “lewd, lascivious, or obscene” words.

In support of her assertion that the word “fuck” is not obscenity, Appellant

cites to Commonwealth v. Fenton, 750 A.2d 863 (Pa.Super. 2000), in

which     this   Court   vacated   Fenton’s    conviction   of   harassment    by

communication conviction as it concluded that Fenton’s threat to “shoot the

fucking head off” a Congressman and his aide did not constitute a “lewd,


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lascivious, or indecent” comment within the meaning of the then-applicable

harassment statute in 18 Pa.C.S. § 5504.

        However, this Court’s decision in Fenton is distinguishable from this

case.     In Fenton, the defendant was charged with harassment by

communication under 18 Pa.C.S. § 5504, which was subsequently repealed.

The applicable language of Section 5504 stated that an individual could be

convicted of harassment by communication if with intent to harass another,

he “addresses to or about such other person any lewd, lascivious or indecent

words or language.”     18 Pa.C.S. § 5504(a) (emphasis added) (repealed).

The Fenton Court noted that the words “lewd, lascivious, or indecent” only

pertain to “matters of a sexual and salacious nature.” Fenton, 750 A.2d at

866. As a result, this Court reversed Fenton’s harassment conviction as it

found that Fenton’s use of the “F word” to describe the heads of the people

he threatened to shoot did not constitute harassing language of a sexual

nature as required by Section 5504. Id.

        However, the Legislature has since repealed Section 5504 and enacted

the current harassment statute in Section 2709, which broadens the scope

of the crime to include communication beyond inappropriate sexual

comments. The statutory language now allows for a harassment conviction

when an individual “with intent to harass, annoy or alarm another …

communicates to or about such other person any lewd, lascivious,

threatening or obscene words, language, drawings or caricatures.”

18 Pa.C.S. § 2709(a)(4) (emphasis added). In Commonwealth v. Hartzell,

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988 A.2d 141, 144 (Pa.Super. 2009), this Court affirmed the appellant’s

harassment conviction under Section 2709 when the appellant exited his

home, began yelling obscenities at the victims, and fired his weapon at the

victims.

      Viewing the record in this case in a light most favorable to the

Commonwealth as verdict winner, we conclude that there was sufficient

evidence to support Appellant’s harassment conviction under Section

2709(a)(4).    Appellant went to the home of her estranged husband’s

paramour, Krista Bedilion, to take back her husband’s truck.     She entered

the Bedilion home without permission and encountered Paige Bedilion, a

sixteen-year old child. Appellant shouted profanities at Paige, threatened to

kill her dog, and lunged at her. The totality of the circumstances permit the

inference that Appellant shouted the profanity and made her threats with the

intent to harass, annoy, or alarm the child victim.     Accordingly, we find

Appellant’s sufficiency claim to be meritless.

      Second, Appellant asserts that the trial court should have granted a

mistrial when the prosecutor informed the jury that she did not call Krista

Bedilion to testify as she would have testified exactly like her daughter,

Paige. Appellant argues that this statement was prosecutorial misconduct as

it bolstered the testimony of Paige Bedilion by claiming she testified

consistently to what her mother, a missing witness, would have said.       In

addition, Appellant asserts that she was entitled to a “missing witness

instruction that the failure of the prosecutor to call the eyewitness’s mother

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gives rise to the inference that the testimony would be favorable to the

defendant whether in direct or cross-examination.” Appellant’s Brief, at 33.

We disagree.

      Our Supreme Court summarized the missing witness adverse inference

as follows:

            When a potential witness is available to only one of the
      parties to a trial, and it appears this witness has special
      information material to the issue, and this person's testimony
      would not merely be cumulative, then if such party does not
      produce the testimony of this witness, the jury may draw an
      inference that it would have been unfavorable.

Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa.Super. 1999) (quoting

Commonwealth v. Manigault, 501 Pa. 506, 510-11, 462 A.2d 239, 241

(1983)). A defendant is not entitled to the missing witness instruction under

the following circumstances:

  1. The witness is so hostile or prejudiced against the party
     expected to call him that there is a small possibility of obtaining
     unbiased truth;

  2. The testimony of such a witness is comparatively unimportant,
     cumulative, or inferior to that already presented;

  3. The uncalled witness is equally available to both parties;

  4. There is a satisfactory explanation as to why the party failed to
     call such a witness;

  5. The witness is not available or not within the control of the party
     against whom the negative inference is desired; and

  6. The testimony of the uncalled witness is not within the scope of
     the natural interest of the party failing to produce him.



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Boyle, 733 A.2d at 638 (quoting Commonwealth v. Evans, 444 Pa.Super.

545, 664 A.2d 570, 573-74 (1995)).

      While Appellant claims she was entitled to a missing witness

instruction, she does not assert that Krista’s testimony was unavailable to

the defense.   See Manigault, 501 Pa. at 511, 462 A.2d at 241 (where

record is devoid of any evidence that a witness was available only to

Commonwealth, refusal to give missing witness charge not error). Thus, we

find that Appellant has not shown she was entitled to the missing witness

adverse inference.

      Nevertheless, the trial court agreed to give a standard jury instruction

related to the Commonwealth’s failure to call Krista as a witness:

      There is a question about what weight, if any, you should give to
      the failure of the Commonwealth to call Krista Bedilion as a
      witness. If, however, three factors are present and there is no
      satisfactory explanation for a party’s failure to call a potential
      witness, the jury is allowed to draw a common sense inference
      that her testimony would have been unfavorable to that party,
      and the three necessary factors are first, that the person is
      available to that party only and not the other; second, it appears
      the person has special information material to the issue, and
      third, the person’s testimony would not merely be cumulative.

      Therefore, if you find these three factors present and there is no
      satisfactory explanation for the Commonwealth’s failure to call
      Krista Bedilion to testify, you may infer if you choose to do so
      that her testimony would have been unfavorable to the
      Commonwealth.

N.T. at 212.




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      Moreover, the trial court issued the following curative instruction to

address the prosecutor’s assertion that Krista’s testimony would have been

cumulative:

      It is for the jury to decide credibility with regard to what is
      testified from the witness stand, and it is not for anyone else but
      the jury to determine credibility. You should not decide the case
      either based on which side presents the greater number of
      witnesses or greater amount of evidence. Instead, you must
      decide which witnesses to believe and which evidence to accept
      on the basis of whether that testimony or evidence is credible.

N.T. at 208.

      With these two instructions, we find that the law was clearly,

adequately     and   accurately   presented    to   the   jury   for   consideration.

Accordingly, we conclude that the trial court did not err in denying

Appellant’s request for a mistrial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




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