J-A28039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TRICIA MEZZACAPPA

                            Appellant              No. 627 EDA 2014


            Appeal from the Judgment of Sentence January 27, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-SA-0000154-2013


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 06, 2014

        Tricia Mezzacappa appeals pro se from her judgment of sentence

following a verdict of guilt for the summary offense of harassment1. Upon

careful review, we affirm.

        The charges stem from a series of actions by Mezzacappa, a local

resident, against the Borough of West Easton’s staff and officials. On April

11, 2013, Mezzacappa appeared at the Borough Hall for purposes of

retrieving borough records under the Right-to-Know Law2.       Jill Garcia, a

borough clerk, denied Mezzacappa initial entry and contacted the Easton



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1
    18 Pa.C.S. § 2709(a)(3).
2
    65 P.S. § 67.101, et seq.
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Police Department to escort her on the premises.3 After Mezzacappa gained

entry through a police escort, tensions between Mezzacappa and Garcia rose

following Mezzacappa’s request for a copy of the borough ordinance or

mandate that requires the police to escort her every time she enters the

borough hall. N.T. 1/27/2014, pp. 19-30. Garcia informed Mezzacappa that

the escort was necessary because she feared Mezzacappa, and the correct

paperwork needed to be filed in order to properly process her request. N.T.

1/27/2014, pp. 14-16.         Mezzacappa stated that, given the size differential

between herself and Garcia, she equally feared Garcia. N.T. 1/27/2014, p.

41. She again demanded the borough records regarding the prerequisites

for her entry into the Borough Hall.           N.T. 1/27/2014, pp. 37-48.    Garcia

responded      with   insulting,    obscene      statements   to   Mezzacappa,   and

Mezzacappa retorted with numerous derogatory remarks about Garcia’s

weight. N.T. 1/27/2014, pp. 19-30, 37-48.

       On April 26, 2013, Garcia filed a private criminal complaint against

Mezzacappa alleging, among other things, harassment. The Commonwealth

charged Mezzacappa with violating 18 Pa.C.S. § 2709(a)(2), (3), (4), and

(7). On June 27, 2013, the magistrate court found Mezzacappa guilty under
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3
  Garcia testified that when Mezzacappa approaches the Borough Hall, she
always refuses Mezzacappa entry and contacts the police to escort
Mezzacappa into the building. N.T. 1/27/2014, pp. 27-30. The
constitutionality of Garcia’s conduct in repeatedly denying Mezzacappa
unescorted entry into a public building is not at issue in the present matter.




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18 Pa.C.S. § 2709(a)(3).4          Mezzacappa filed a timely appeal.   During a

bench trial on January 27, 2014, the court heard testimony from Garcia,

Mezzacappa, and responding Officer Carl Faulkner of the City of West

Easton’s Bureau of Police. Consistent with her averments in the criminal

complaint, Garcia testified that she feared Mezzacappa based on her

previous interactions with her at the Borough Hall. N.T. 1/27/2014, pp. 23-

30. Garcia added that her fear also arose from Mezzacappa maintaining a

website that portrays Garcia in an offensive and demeaning light and

contains photographic montages implying Mezzacappa will use a firearm

against the borough, its officials, and employees. Id. The trial court found

Mezzacappa guilty of harassment under subsection (a)(3).

       Mezzacappa seeks to present the following issues for review:

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4
  Following Mezzacappa’s conviction in magistrate court, the criminal docket
incorrectly stated that she was convicted of 18 Pa.C.S. § 2709(a)(2),
following a person in or about a public place, instead of 18 Pa.C.S. §
2709(a)(3), a course of conduct which serves no legitimate purpose.
Commonwealth’s Brief at 3, n. 2. After being informed of the error at the
beginning of trial, both Mezzacappa and her counsel expressly agreed to
proceed immediately to trial on subsection (a)(3). Mezzacappa did not
object to amending the charge from subsection (a)(2) to (a)(3). Nor did she
request a continuance or challenge this amendment in a post-sentence
motion. See N.T. 1/27/2014 at 11. Therefore, the procedural due process
arguments in her brief have been waived, since Mezzacappa failed to raise
them in the trial court. DeMatteis v. DeMatteis, 582 A.2d 666, 673
(Pa.Super.1990) (“Even constitutional issues such as failure to afford due
process may be waived, where issues are not raised in lower court, but are
presented for the first time on appeal”). Even if she preserved these issues,
they are devoid of merit for the reasons provided below.




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          [1.] Whether the [c]ourt of [c]ommon [p]leas
               committed error of law or abused its
               discretion, violated Mezzacappa's constitutional
               right to equal protection/due process/First
               Amendment        when   it   determined     that
               Defendant      Mezzacappa    was    guilty    of
               Harassment under 18:2709(a)(3)? (see docket
               entry, guilt determined to be 18:2709 (a)(2),
               and transcript page 50 line 1 through page 53
               line 8)

          [2.] Whether the [c]ourt of [c]ommon [p]leas
               committed error of law, abused its discretion,
               or violated Ms. Mezzacappa's Constitutional
               right to Due Process when it allowed a
               continuance of proceeding at the time of
               nonjury trial, with lawyers present after
               commencement of proceedings, to change
               guilty verdict from 18:2709 (a)(2), to 18:2709
               (a)(3), even when the docket entries clearly
               show that President Judge Steven Baratta
               already corrected the discrepancy, ordering on
               11/6/2013, that Mezzacappa was found guilty
               of 18:2709 (a)(2)? (see transcript page 3 line
               24 through page 10 line 25)

          [3.] Whether the [c]ourt of [c]ommon [p]leas
               committed error of law, abused its discretion,
               or violated Ms. Mezzacappa's Constitutional
               right to Due Process when Mezzacappa was
               clearly prejudiced by this last minute
               continuance at the time of nonjury trial. This
               last minute continuance thereby violated
               Mezzacappa's right to be defended by counsel.
               Mezzacappa was unable to afford a second
               appearance from her Philadelphia lawyer who
               was retained in her defense, for a single
               appearance at the time of nonjury trial. (see
               transcript page 3 line 24 through page 10 line
               25)

          [4.] Whether the [c]ourt of [c]ommon [p]leas
               committed error of law, abused its discretion,
               violated Mezzacappa's constitutional right to
               equal    protection/  due    process/    First

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                   Amendment,       when    it   determined    that
                   Defendant     Mezzacappa      was    guilty   of
                   Harassment under 18:2709 (a)(3)....'course of
                   conduct with no official purpose after
                   Mezzacappa entered into evidence a letter
                   from Philip Lauer, Esq., directing Mezzacappa
                   to obtain a policy/resolution/ordinance that has
                   banned Mezzacappa from entering Borough
                   Hall? Letter from Lauer was dated April 9,
                   2013. Date of incident prompting this
                   prosecution was April 11, 2013. (see transcript
                   page 47 line 9 through page 48 line 8, and
                   page 39 line 22 through page 40 line 1)

             [5.] Whether the [c]ourt of [c]ommon [p]leas
                  committed error of law or abused its discretion
                  when it determined that witness for the
                  Commonwealth, West Easton Borough Clerk Jill
                  Garcia, was a credible witness, after Jill Garcia
                  conceded on record that she was the first
                  person to insult Mezzacappa in the presence of
                  Officer Faulkner on April 11,2013, by stating "I
                  don't have to let you in here because I fear
                  you" and further testified that she called
                  Mezzacappa ''a fucking bitch" on April 11,
                  2013? (see transcript page 19 line 7 - 24 and
                  page 31 line 4 through page 32 line 21)

Appellant’s Brief at 4-5.

      In lieu of filing a 1925(a) opinion, the trial court stated the reasons for

its verdict at the conclusion of trial:

             [B]ased upon the information that was presented
             today, Ms. Mezzacappa[’s testimony], the postings
             on [Mezzacappa’s] blog, as the witness [Garcia] for
             the Commonwealth testified, and the prior
             involvement, that I think that the totality of the
             evidence supports a finding beyond a reasonable
             doubt that Ms. Mezzacappa did engage in a course of
             conduct with intent to harass, annoy, and alarm this
             borough employee as well as other people involved
             with West Easton and is guilty of the summary

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            offense of harassment pursuant to Title 18 Pa.C.S.A.
            Section 2709(a)(3).

            And based upon the statute, I’m going to impose a
            fine of $300 plus costs.

N.T., 1/27/14, p. 55 (quoting trial court).

      Mezzacappa’s first three issues appear to raise a procedural due

process challenge to her harassment conviction. She asserts the trial court

violated her constitutional right to due process when it permitted the

Commonwealth to change the subsection under which she was charged and

previously convicted in magistrate court from subsection 2709(a)(2) to

subsection 2709(a)(3) of the harassment statute.

      In reviewing a constitutional question, the appellate court's standard

of review is de novo, and its scope of review plenary. City of Philadelphia

v. Fraternal Order of Police Lodge No. 5 (Breary), 985 A.2d 1259, 1269

n. 13 (Pa.2009).

      Mezzacappa’s procedural due process argument lacks merit. While

“[t]he Commonwealth [may have] acted inappropriately, [and/or] in bad

faith, by waiting until the last minute on 1/27/14, at time of trial, to attempt

to change . . .” the subsection under which she was charged, the trial court

was ready and willing to grant her a continuance in order to more fully

present a defense. Appellant’s Brief at 11. She asserts, “[t]his act caused

prejudice to Defendant, because she could not afford to have her

Philadelphia lawyer return for another court date. Mezzacappa reluctantly



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J-A28039-14


allowed the Commonwealth to change the charges, otherwise she would

have had no attorney present for the matter that was being continued.” Id.

      After notice of the charges, and having been afforded an opportunity

to delay the trial, Mezzacappa willingly and voluntarily proceeded to defend

the charge of harassment under subsection (a)(3). Because the trial court

did not deprive Mezzacappa of notice and fair opportunity to be heard on the

merits of her defense, no procedural due process violation occurred.

Although she may not have been able to afford the particular attorney she

hired, Mezzacappa could have hired a different attorney or sought

appointment of counsel from the court for the second court date.

Accordingly, since the trial court did not violate Mezzacappa’s federal or

state due process guarantees, this claim lacks merit.

      While couched in procedural due process language, Mezzacappa’s

fourth issue on appeal appears to challenge the sufficiency of the evidence

to convict her of harassment. She claims that she “only responded to [the]

West Easton Borough Clerk, without any vulgarity, after Jill Garcia refused to

allow Mezzacappa inside Borough Hall.” Appellant’s Brief at 10. This claim

also lacks merit.

      Our standard of review for a challenge to the sufficiency of the

evidence is:

            [W]hether[,] viewing all the evidence admitted at
            trial   in  the   light most    favorable    to   the
            [Commonwealth as the] verdict winner, there is
            sufficient evidence to enable the fact-finder to find

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           every element of the crime beyond a reasonable
           doubt. 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.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted); see also Commonwealth v. Bostick, 958 A.2d 543, 560

(Pa.Super.2008) (quoting Commonwealth v. Smith, 956 A.2d 1029, 1035-

36 (Pa.Super.2008)).

     Section 2709(a)(3) of the Criminal Code defines the crime of

harassment in relevant part as follows: “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.” 18 Pa.C.S. § 2709(a)(3).

     In general, a single act will not constitute a course of conduct under

the definition of harassment. Commonwealth v. Lutes, 793 A.2d 949

(Pa.Super.2002). In prosecutions for harassment, the introduction of

evidence of prior acts of harassment can be relevant and admissible

inasmuch as the evidence tends to prove that the alleged offense constitutes

part of an overall scheme of harassment of the prosecutrix and the evidence

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is germane to establish an element of the offense, i.e., criminal intent.

Commonwealth v. Evans, 445 A.2d 1255 (Pa.Super.1982).

       To be convicted under this particular subsection of harassment, the

Commonwealth must prove beyond a reasonable doubt that Mezzacappa

intended to annoy, harass, or alarm Garcia (the clerk) through engaging in a

course of conduct or repeatedly committing acts which serve no legitimate

purpose. See 18 Pa.C.S. § 2709(a)(3). Mezzacappa directs our attention to

the day where the acrimony between she and Garcia rose to a verbal

confrontation. See Appellant’s Brief at 10. However, our focus extends

beyond the       day   in question      to     the   series of events beginning   in

approximately September 2010, when Garcia alleged Mezzacappa began

harassing her. See Private Criminal Complaint, 4/26/2013, at 3 (page

number supplied). Notably, the trial court found credible Garcia’s testimony

regarding Mezzacappa’s prior bad acts involving Garcia and other borough

officials.5 Mezzacappa’s disconcerting and offensive blog posts, in addition to

her verbal insults to Garcia, suffice to establish that she engaged in a course

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5
  Garcia testified, “[Mezzacappa] runs a blog called West Easton Footprint
where she’s posted videos of guns and caskets next to the borough hall, and
she’s made open threats against council people . . . . [Mezzacappa refers to
me as] super tub. I’m giant Jill Garcia.” Consistent with Mezzacappa’s
pattern of calling the clerk derogatory names, Garcia further testified that,
on the date at issue, Mezzacappa stated Garcia outweighed her by 400
pounds, that she was concerned what Mezzacappa would write next on her
blog, and whether her kids would find these hurtful comments when
searching the internet for her name. N.T. 1/27/14 at 16-19.



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of conduct that served no legitimate purpose and annoyed and/or alarmed

Garcia.   The    Commonwealth’s       evidence    enabled    the    fact-finder    to

circumstantially find that Mezzacappa intended such a result. Accordingly,

sufficient evidence existed to convict Mezzacappa of harassment.

      In her last issue on appeal, Mezzacappa asserts the verdict was

against the weight of the evidence. Specifically, she claims the trial court

erred by finding Garcia, the borough clerk who filed the criminal complaint of

harassment and who testified at trial, a credible witness. This claim lacks

merit.

      Our review of whether a verdict is against the weight of the evidence

is governed by Commonwealth v. Champney, 832 A.2d 403 (Pa.2003):

              The weight of the evidence is exclusively for the
              finder of fact who is free to believe all, part, or none
              of the evidence and to determine the credibility of
              the witnesses. An appellate court cannot substitute
              its judgment for that of the finder of fact. Thus, we
              may only reverse the lower court's verdict if it is so
              contrary to the evidence as to shock one's sense of
              justice. Moreover, where the trial court has ruled on
              the weight claim below, an appellate court's role is
              not to consider the underlying question of whether
              the verdict is against the weight of the evidence.
              Rather, appellate review is limited to whether the
              trial court palpably abused its discretion in ruling on
              the weight claim.

Id. at 408.

      When a challenge to the weight of the evidence is predicated on the

credibility of trial testimony, appellate review of the trial court's decision is

extremely     limited.   Commonwealth       v.   Gibbs,     981    A.2d   274,    282


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(Pa.Super.2009), appeal denied, 3 A.3d 670 (Pa.2010). Generally, unless

the evidence is so unreliable or contradictory as to make any verdict based

thereon pure conjecture, appellate courts will reject these types of claims.

See,    e.g.,   Commonwealth       v.   Trippett,   932    A.2d   188,    198

(Pa.Super.2007); Commonwealth v. Rossetti, 863 A.2d 1185, 1191

(Pa.Super.2004).

       Mezzacappa essentially asks this Court to reassess the credibility of

Garcia’s testimony and her own testimony. It is well settled, however, that

this Court cannot substitute its judgment for that of the trier of fact.

Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super.2000). “[I]t is for

the fact-finder to make credibility determinations, and the finder of fact may

believe all, part, or none of a witness’s testimony.” Commonwealth v. Lee,

956 A.2d 1024, 1029 (Pa.Super.2008). The trial court heard conflicting

testimony from Mezzacappa and Garcia. Therefore, since the trial court was

free to believe some, all, or none of the testimony presented, it acted within

its discretion in crediting Garcia’s testimony over that of Mezzacappa’s

testimony. Mezzacappa’s dissatisfaction with the trial court’s credibility

determination simply does not afford her a basis for relief. Accordingly, we

discern no error.

       Judgment of sentence affirmed.

       President Judge Gantman joins in Memorandum.

       Judge Wecht concurs in the result.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014




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