J-S33022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 PAUL J. TURRISI                          :
                                          :
                     Appellant            :   No. 863 MDA 2018

              Appeal from the Judgment of Sentence May 1, 2018
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0004575-2017


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                    FILED: SEPTEMBER 16, 2019

      Paul J. Turrisi appeals from the judgment of sentence imposed May 1,

2018, in the Berks County Court of Common Pleas. The trial court sentenced

Turrisi to nine months’ probation after he was convicted by a jury of one count

of harassment. See 18 Pa.C.S. § 2709(a)(4). On appeal, Turrisi argues the

evidence was insufficient to sustain his conviction. For the reasons below, we

affirm.

      The trial court summarized the testimony presented at Turrisi’s jury trial

as follows:

            At trial, the Commonwealth presented testimony from four
      victims/eyewitnesses to the harassment - three members of the
      tree-trimming crew (Maria Osto[r]ga, Jose Oscar Orellana, and
      Daniel Francisco Hernandez) and [Turrisi’s] neighbor (Mr.
      Bullard). The testimony essentially established that the tree-
      trimming crew had just begun work on September 9, 2017, when
      [Turrisi] (an adjoining landowner) approached the crew and told
      them to stop working because, in [Turrisi’s] mind, the crew was
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     illegally trimming holly trees located on or near the border of the
     two properties. [Turrisi] threat[en]ed to shoot the work crew
     and/or Mr. Bullard if the crew trimmed the holly trees and/or
     another bush located next to the holly trees (the “burning bush”).

            There were three holly trees at issue. It was established
     that the trunks of the trees were located on Mr. Bullard’s property,
     approximately five or six feet from the boundary with [Turrisi’s]
     property, but that several branches on each tree extended over
     the boundary line. The holly trees had been trimmed by the same
     work crew approximately one week prior to the date/conduct at
     issue. Concerning the northernmost tree [“Tree No. 1”] two of
     the branches that extended over the property line on to [Turrisi’s]
     property were cut at a spot six (6) inches over the property line,
     i.e. the cut was made at a spot hanging over [Turrisi’s] property,
     six inches from the boundary. Of all the branches on the center
     tree [“Tree No. 2”], one that extended over onto [Turrisi’s]
     property was cut one (1) foot from the property line. Finally, three
     branches from the southernmost tree [“Tree No. 3”] were cut at
     seven (7) inches from the line/over [Turrisi’s] property. In all, six
     branches were cut that extended over the boundary line.

            Maria Ostorga, the head of the tree-trimming crew, testified
     first for the Commonwealth. She was the only member of the
     crew who spoke and understood English. The crew had not yet
     started to work on September 9, 2017, when [Turrisi]
     approached. Ms. Ostorga stated that [Turrisi] “was real upset” by
     “[t]he way he was screaming at me.” [Turrisi] “was saying, ‘I
     want to see your papers, I want to see your documents, I want to
     see this, I want to see your permit’... And he said ‘you better stop
     cutting my trees or I am going to bring my shotgun.’”

            Ms. Ostorga called Mr. Bullard, the property owner who had
     hired the tree-trimming crew, and asked him to return to his
     property. Mr. Bullard arrived and began speaking with [Turrisi].
     [Turrisi’s] mood got worse once Bullard arrived. While speaking
     to Mr. Bullard, [Turrisi] “was screaming” and “was real upset.”
     “[Turrisi] was saying fuck you, shut up, what are you cutting my
     trees for. And Mr. Dave said ‘hold on, we are not cutting your
     trees down, I am just trimming this side.’ But [Turrisi] kept on
     going screaming.” “Then [Turrisi] got his phone out and he said
     he was going to call the police... And then he said, he told the
     police, “‘if you don't get here, I am going to take care of them
     right now’ or ‘I am going to take care of this myself.’” Ms. Ostorga
     heard [Turrisi] tell the 911 operator, “‘if you don't come right

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     away, I am going to take care of this myself.’” [Turrisi’s] conduct
     and language made Ms. Ostorga nervous and scared. Prior to the
     arrival of the police, [Turrisi] referenced a light pole located
     nearby and said, “‘if you go past the light pole, I'm going to shoot
     you.’” [Turrisi] stated that he would get a shotgun if any person
     from the tree-trimming crew went on his property. The police
     arrived approximately five minutes after [Turrisi] called 911

            Jose Oscar Orellana was a member of the work crew and
     testified at trial. He was one of the two crew members that
     [Turrisi] initially approached. Mr. Orellana does not speak English.
     Nevertheless, Mr. Orellana could tell based on [Turrisi’s] tone that
     he was “interrogating [Ms. Ostorga], like humbling her.” [Turrisi]
     told Ms. Ostorga that the tree-trimming crew was committing a
     crime. Mr. Orellana stated that he felt “nervous” and “bad”
     because – as translated to Mr. Orellana by Ms. Ostorga at the time
     of the encounter – [Turrisi] stated that he was going to get a rifle
     and “eliminate” him if he crossed a property boundary. Mr.
     Orellana testified that he had never crossed the purported
     boundary identified by [Turrisi]. Mr. Orellana testified that he felt
     “desperate” and “had never felt like that before, like I felt that
     day.” Mr. Orellana did not understand [Turrisi’s] words, but could
     tell that [Turrisi] was speaking very loudly and “very badly” to Mr.
     Bullard.

            Mr. Bullard testified that, upon arriving at the location of the
     encounter in his back yard, he engaged [Turrisi] directly. During
     this interaction, [Turrisi] told Mr. Bullard that he, “was in big
     trouble and that what was a civil matter had now become a
     criminal matter and that [Mr. Bullard] better be prepared to face
     the consequences.” [Turrisi] asked Mr. Bullard if the crew would
     be doing any additional trimming, and Mr. Bullard replied that the
     crew would be working all day around the property. “And that's
     when [Turrisi] said ‘maybe I should get my shotgun.’” Ms.
     Ostorga was present when [Turrisi] made this threat. [Turrisi]
     asked if the crew would be trimming the “burning bush”, which is
     located at the end of the row of holly trees near a light utility pole.
     Mr. Bullard indicated that the burning bush was on the list, and
     [Turrisi] warned: “If anyone goes near that utility pole, I will blow
     your heads off.” At that point Mr. Bullard told Maria to take the
     work crew to the other side of the house and demanded that
     [Turrisi] get off his property immediately. [Turrisi] did not leave
     Mr. Bullard’s property.



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              Eventually, [Turrisi] called 911 to request that police
       respond. Upon arrival, [Turrisi] told Reading Police Officer Vincent
       Leazier that, “... the neighbors, the landscapers were cutting down
       his trees. They were destroying his trees, and he demanded that
       they be arrested.” Officer Leazier responded that this was a civil
       dispute and, as he explained to [Turrisi] his professional opinion
       of how to handle the situation, “[Turrisi] interrupted me and told
       me that if I did not get them off his property, he was going to get
       his shotgun and shoot them.” Officer Leazier advised [Turrisi] not
       to use force, which “seemed to anger [Turrisi] more and he began
       slapping the trees.” [Turrisi] declared: “‘These are my trees.
       They are destroying my trees.’ And... he said, ‘I’m sorry, if
       [Officer Leazier] [doesn’t] do something, [I am] going to take the
       law into [my] own hands.’”

Trial Court Opinion, 2/28/2019, at 4-7.

       Turrisi was subsequently arrested and charged with one count each of

terroristic threats, 18 Pa.C.S. § 2706(a)(1), and harassment (course of

conduct), 18 Pa.C.S. § 2709(a)(3).               The charge of harassment under

Subsection 2709(a)(3) was dismissed at the preliminary hearing. Therefore,

the information filed on October 10, 2017, listed only one charge of terroristic

threats.

       Prior to trial, the court granted the Commonwealth’s motion in limine to

amend the information to include a charge of harassment under Subsection

2709(a)(4).1 On March 27, 2018, the jury returned a verdict of guilty on the

charge of harassment and not guilty on the charge of terroristic threats.


____________________________________________


1The trial court denied Turrisi’s pretrial motion for writ of habeas corpus, and
a supplemental motion in limine filed by the Commonwealth seeking to
preclude Turrisi from presenting a castle doctrine (defense of property)
defense.



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Turrisi was sentenced on May 1, 2018, to a term of nine months’ probation.

This timely appeal followed.2

       Turrisi’s sole issue on appeal is a challenge to the sufficiency of the

evidence supporting his conviction of harassment.

       “In reviewing a sufficiency of the evidence claim, we must
       determine whether the evidence admitted at trial, as well as all
       reasonable inferences drawn therefrom, when viewed in the light
       most favorable to the verdict winner, are sufficient to support all
       elements of the offense.” When performing this review, “we may
       not reweigh the evidence or substitute our own judgment for that
       of the fact finder.”

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (internal

citations omitted). Moreover, we note “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.” Commonwealth v. Smith, 206

A.3d 551, 557 (Pa. Super. 2019) (quotation omitted).




____________________________________________


2  On May 30, 2018, the trial court ordered Turrisi to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). When Turrisi
failed to do so by August 16, 2018, the court filed an opinion concluding all of
Turrisi’s issues were waived on appeal. On September 12, 2018, Turrisi’s
counsel filed an application for remand in this Court, seeking permission to file
a concise statement nunc pro tunc. This Court granted the application on
September 17, 2018, and remanded the case with directions (1) to counsel to
file a concise statement within 21 days, and (2) to the trial court to file a
supplemental opinion 30 days thereafter. Although counsel filed a timely
concise statement on October 5, 2018, the trial court neglected to file a
supplemental opinion. Thereafter, this Court issued three follow-up orders,
each directing the trial court to file its opinion. The trial court finally complied
on February 28, 2019.


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       Turrisi first argues the evidence failed to establish he made a threat to

the non-English speaking complainants because “any alleged threat was

conveyed to them by [Ms. Ostorga],” not by Turrisi himself. Turrisi’s Brief at

8.   Furthermore, he asserts that “[i]n the context of the statute it would

appear that the threat must be one to do something illegal,” and his threat

that he would take care of the situation himself “is ambiguous and not illegal.”

Id. at 9. We find Turrisi’s claim is belied by the evidence.

       Pursuant to Section 2709(a)(4) of the Crimes Code, a defendant may

be convicted of harassment if the Commonwealth proves the defendant, “with

intent to harass, annoy or alarm another … communicate[d] to or about [the

complainant] any lewd, lascivious, threatening or obscene words, language,

drawings or caricatures[.]” 18 Pa.C.S. § 2709(a)(4).

       Here, the evidence clearly established Turrisi communicated threatening

words both to Maria Ostorga directly and about her work crew.3 Ostorga

testified that when Turrisi began screaming at her and the crew, he stated,

“you better stop cutting my trees or I am going to bring my shotgun.” N.T.,

3/26-27/2018, at 32.          Therefore, when considered in context, Turrisi’s

statement to the 911 operator, “if you don’t come right away, I am going to

____________________________________________


3 To the extent Turrisi asserts the evidence did not establish he used obscene
language, we find no such requirement under the statute. See Turrisi’s Brief
at 10-11. Indeed, Subsection (a)(4) requires proof that the defendant
communicated “lewd, lascivious, threatening or obscene words, language,
drawings or caricatures[.]” 18 Pa.C.S. § 2709(a)(4)(emphasis supplied). As
will be discussed infra, we find the evidence demonstrated Turrisi used
“threatening” words and language.

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take care of this myself[,]” constituted threatening language. Id. at 36-37.

Furthermore, Ostorga also testified Turrisi referenced his property line, and

said to her, “if you go past the light poles, I’m going to shoot you.” Id. at 37.

Jose Oscar Orellana, Ostorga’s nephew and part of the work crew, testified

that Turrisi began screaming at him and another co-worker in English, which

neither of them understood.          See id. at 46.   However, Orellana testified

Ostorga explained to them Turrisi “wanted to cause us harm” and if they

“pass[ed]” into a certain area, “he was going to take out a rifle.” Id. at 47,

49. Another man on the work crew, Daniel Francisco Hernandez, corroborated

Orellana’s testimony. See id. at 63. Ostorga called the owner of the property,

David Bullard, who returned home to speak to Turrisi.          Moreover, Bullard

testified that when he explained to Turrisi that the workers would be trimming

trees at the property all day, “that’s when [Turrisi] said maybe I should get

my shotgun.” Id. at 75. Bullard claimed Turrisi also said that if anyone went

near a utility pole on his property, he would “blow [their] heads off.” Id. at

76.

        Although Turrisi, himself, testified he did not swear or raise his voice

when he confronted the work crew, and never threatened to get his gun,4 the

jury found his testimony not credible, as was its prerogative. See Smith,

supra.     Therefore, the fact that some of the complainants did not speak

English is irrelevant. Turrisi asserts his actions were justified because he was
____________________________________________


4   See N.T., 3/26-27/2018, at 138, 152.


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defending his property, see 18 Pa.C.S. § 507 (“Use of force for the protection

of property”); however, Turrisi presented this defense to the jury, who, based

upon their verdict, rejected it. We note Section 507 permits the use of deadly

force only if “there has been an entry into the [defendant’s] dwelling[.]” 18

Pa.C.S. § 507(c)(4)(i)(A). Here, there is no testimony that any of the work

crew entered Turrisi’s home or attached porch5 as would justify the use of

deadly force.      Accordingly, we find the evidence presented at trial was

sufficient to support the jury’s verdict.

       Turrisi also contends the evidence did not establish he engaged in a

course of conduct to harass the complainants. See Turrisi’s Brief at 9-10.

However, this argument is misplaced.             Proof of a course of conduct of

harassing behavior is required for a conviction of Section 2709(a)(3). See 18

Pa.C.S. § 2709(a)(3) (“A person commits the crime of harassment when, with

intent to harass, annoy or alarm another, the person … engages in a course

of conduct or repeatedly commits acts which serve no legitimate purpose”).

Although Turrisi was originally charged with that offense, the charge was

dismissed at the preliminary hearing. Subsequently, the trial court permitted

the Commonwealth to amend the information to include a charge of




____________________________________________


5 A “dwelling” is defined in the Crimes Code as “[a]ny building or structure,
including any attached porch, deck or patio, though movable or temporary, or
a portion thereof, which is for the time being the home or place of lodging of
the actor.” 18 Pa.C.S. § 501.


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harassment under Subsection 2709(a)(4).       As noted above, Subsection

2709(a)(4) does not require proof of a course of conduct.

     Accordingly, we conclude Turrisi’s challenge to the sufficiency of the

evidence is meritless, and affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2019




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