Com. v. Polisky, F. ( 2016 )

J-A14040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRED POLISKY,
Appellant No. 1170 MDA 2015
Appeal from the Judgment of Sentence June 29, 2015
in the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0002034-2014
BEFORE: BOWES, J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 03, 2016
Appellant, Fred Polisky, appeals from the judgment of sentence
imposed on June 29, 2015, following his jury conviction of terroristic
threats.1 We affirm.
We take the underlying factual and procedural history in this matter
from the trial court’s December 22, 2015 opinion and our independent
review of the certified record.
The incident . . . occurred on April 10, 2014[,] during an
Edwardsville Borough Council Meeting. [Appellant] was in
attendance at the meeting and he threatened to kill Officer
Michael Lehman, a police officer of the Edwardsville Borough
Police Department.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa. C.S.A. § 2706(a)(1).
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At the trial[2], various witnesses testified as to what
occurred. Mr. David Stochla, the Borough Council President of
the Edwardsville Borough Council[,] testified that while he was
presiding over the Borough Council meeting, during the public
comment session, [Appellant] threatened to kill Officer Michael
Lehman [if Officer Lehman stepped foot on his property. (See
N.T. Trial, 4/22/15, at 48)]. In addition, Officer John Fronzoni,
also a police officer of the Edwardsville Borough Police
Department, who was also in attendance at the Edwardsville
Borough Council meeting on the evening of April 10, 2014, heard
[Appellant] threaten to kill Officer Michael Lehman [if he stepped
foot on Appellant’s property. (See id. at 57).] Officer Fronzoni
also testified that immediately after the public comment session
where the threat was made, [Appellant] repeated the threat to
Officer Fronzoni at least two additional times.
Officer Lehman also testified as to the events of April 10,
2014. [He] testified that he had professional interactions with
[Appellant] prior to April 10, 2014. He became aware of the
direct threats immediately after the council meeting. He did not
attend the meeting, however, he was advised as to the threat
from multiple sources. Officer Lehman became concerned as to
the threat based on past incidents with [Appellant]. The officer
was concerned for himself and his family and took the threat
seriously.
[Appellant] testified that Officer Lehman was a corrupt cop
and that on more than one occasion Officer Lehman has
surveyed [Appellant’s] house and shined a light in his eyes and
into the house. [Appellant] characterized Officer Lehman as a
coward and a criminal wearing a badge. [Appellant] admitted
that he did say that if Officer Lehman stepped foot on his
property, he would kill him. He explained that he did so as a
figure of speech and wanted to warn Officer Lehman. The jury
convened and ultimately found [Appellant] guilty of [t]erroristic
threats.
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2
After the first jury in this matter was unable to reach a verdict, the trial
court declared a mistrial. The Commonwealth called this matter for the next
term and the court listed it for the April 2015 term. On April 22, 2015, a
jury was selected and Appellant’s second trial commenced.
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(Trial Court Opinion, 12/22/15, at 2-3).
On June 29, 2015, the trial court sentenced Appellant to not less than
four nor more than eight months of incarceration in the Luzerne County
Correctional Facility, to be followed by a three-year term of probation.
Appellant did not file a post-sentence motion. On July 2, 2015, Appellant
filed a timely notice of appeal. On July 24, 2015, Appellant filed a statement
of errors complained of on appeal. See Pa.R.A.P. 1925(b). On December
22, 2015, the trial court entered its opinion. See Pa.R.A.P. 1925(a).
Appellant raises two issues on appeal.
1. Whether the [t]rial [c]ourt erred by refusing to instruct the
jury with respect to self-defense (non-deadly force)?
2. Whether the [t]rial [c]ourt erred by determining that
[Appellant’s] speech, i.e. attempting to raise an issue of police
misconduct at a public hearing, was not protected by the
Fourteenth Amendment to the United States Constitution?
(Appellant’s Brief, at 3).
In his first issue, Appellant claims that the trial court erred in refusing
to instruct the jury regarding self-defense. (See id. at 16-18). Specifically,
Appellant argues that the evidence supports self-defense because he
testified that he made his statement:
in self-defense due to his belief that Officer Lehman was a threat
to him and his family; including the following instances:
1. Officer Lehman was shining a spotlight into his house
while he had his grandchildren [visiting];
2. Officer Lehman had falsely arrested his wife and as a
result thereof, his wife was afraid to drive a car;
3. Officer Lehman had falsely arrested [Appellant].
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(Id. at 16). We disagree.
Preliminarily, we note that Appellant waived his first issue for failure to
raise it before the trial court. A review of the trial transcript reveals that
Appellant did not object to the lack of self-defense instruction. See
Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005) (“[U]nder
Criminal Procedural Rules 603 and 647(B), the mere submission and
subsequent denial of proposed points for charge that are inconsistent with or
omitted from the instructions actually given will not suffice to preserve an
issue, absent a specific objection or exception to the charge or the trial
court’s ruling respecting the points.”). Accordingly, he has waived this issue.
Moreover, Appellant has failed to develop his argument. In his brief,
Appellant cites two cases, which he argues would require the court to issue a
self-defense instruction because, he alleges, there was evidence that he
acted in self-defense. (See Appellant’s Brief, at 16-17). However, neither
case is applicable here because Appellant did not use force against an
imminent threat, but rather threatened to kill a police officer who was not
even present. See Commonwealth v. Rittle 428 A.2d 168, 170 (Pa.
Super. 1981) (concluding that appellant was entitled to use of force in self-
protection charge where evidence demonstrated victim was initial aggressor
and put appellant in fear of imminent serious bodily injury);
Commonwealth v. Bailey, 471 A.2d 551, 553 (Pa. Super. 1984)
(concluding that jury should have been instructed on self-defense where
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evidence demonstrated that simple assault on victim was self-defense
reaction to victim’s assault on defendant).
Here, Appellant has not provided, nor has our review of case law
revealed, any legal authority requiring the trial court to issue a self-defense
instruction for a charge of terroristic threats. (See Appellant’s Brief, at 16-
18). Furthermore, we are not persuaded that Appellant was ever in
imminent fear of serious bodily injury where he merely claims that Officer
Lehman shined a spotlight into his house and allegedly had falsely arrested
Appellant and his wife. (See id. at 16); Rittle, supra at 170. Accordingly,
Appellant’s first issue, even if properly preserved, would not merit relief.
In his second issue, Appellant claims that the trial court erred in
denying his motion for a judgment of acquittal based upon free speech
protections. (See Appellant’s Brief, at 19-20). Specifically, he argues that
his comments should have been protected because he was raising an issue
of police misconduct at a public meeting, which he alleges is protected
speech under Watts v. United States, 394 U.S. 705 (1969). (See id.).
We disagree.3
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3
Preliminarily, we note that Appellant has failed to develop properly his
argument. In his three-paragraph argument section, he has cited only
boilerplate law and has failed to apply the law to the facts and circumstances
of this case. See Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super.
2012), appeal denied, 69 A.3d 601 (Pa. 2013).
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Our standard of review of an order denying a motion for judgment of
acquittal is well settled.
A motion for judgment of acquittal challenges the
sufficiency of the evidence to sustain a conviction on a particular
charge, and is granted only in cases in which the Commonwealth
has failed to carry its burden regarding that charge.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find 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. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier 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. Hutchinson, 947 A.2d 800, 805-06 (Pa. Super. 2008),
appeal denied, 980 A.2d 606 (Pa. 2009) (citations and emphasis omitted).
“Under section 2706, one commits terroristic threats either by
threatening a crime of violence with specific intent to cause terror
(subsection 1), or by threatening anything that causes terror with reckless
disregard of the risk of causing terror (subsection 3).” Commonwealth v.
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Walker, 836 A.2d 999, 1001 (Pa. Super. 2003), appeal denied, 853 A.2d
361 (Pa. 2004) (citing 18 Pa.C.S.A. § 2706(a)).
Threatening speech, such as that encompassed within the crime of
terroristic threats, may be prevented without infringing upon constitutional
rights.
[T]he right to free speech is not absolute, and certain well-
defined, limited classes of speech may be prevented and
punished without raising constitutional problems. . . . Only true
threats fall within that group of expressions, such as fighting
words, which are not constitutionally protected pure speech. A
true threat is one which on its face and in the circumstances in
which it is made is so unequivocal, unconditionally immediate
and specific as to the person threatened, as to convey a gravity
of purpose and imminent prospect of execution.
Commonwealth v. Baker, 722 A.2d 718, 721–22 (Pa. Super. 1998),
affirmed, 766 A.2d 328 (Pa. 2001) (citations and quotation marks omitted).
Here, we agree with the trial court’s conclusion that Appellant’s
statement, that he would kill Officer Lehman if he stepped onto his property,
constituted a true threat where he made a specific threat against Officer
Lehman, which Officer Lehman testified he took seriously. (See N.T. Trial,
4/22/15, at 48, 57, 70, 81-82). Appellant’s statement does not simply
constitute raising a matter of police misconduct at a public meeting. We
agree with the trial court’s conclusion that Appellant’s statement is
distinguishable from the political speech protected under Watts, supra
because it was specific to Officer Lehman, was not expressly conditional, and
the listeners took the threats seriously. (See Trial Ct. Op., at 6-8)
(“[Appellant] threatened to kill Officer Lehman. That is clear and
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unequivocal; he cannot now hide behind a constitutional protection which
was enacted so that the polis could articulate anti-government sentiment
without the prospect of retaliation.”). Accordingly, we conclude that,
because the statement was not protected speech, the Commonwealth
presented sufficient evidence to establish the elements of terroristic threats
beyond a reasonable doubt, and therefore the trial court did not err in
denying Appellant’s motion for judgment of acquittal. See Hutchinson,
supra at 805-06; Walker, supra at 1001. Appellant’s second issue does
not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2016
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