Com. v. Kruskie, L. ( 2021 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LISA MARIE KRUSKIE, :
:
Appellant : No. 1961 MDA 2019
Appeal from the Judgment of Sentence Entered November 14, 2019
in the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000283-2018
BEFORE: KUNSELMAN, J., McLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED: JANUARY 21, 2021
Lisa Marie Kruskie (Appellant) appeals from her November 14, 2019
judgment of sentence for indirect criminal contempt (ICC), based upon her
violation of a temporary order pursuant to the Protection From Abuse (PFA)
Act, 23 Pa.C.S. §§ 6101-6122. We affirm.
By way of background, the Commonwealth charged Appellant with
terroristic threats, harassment, and ICC. The charges stemmed from a May
26, 2018 incident between Appellant and her ex-husband, Robert Kruskie,
Jr.1 At the time of the incident, a temporary PFA order entered on April 4,
2018, was in effect. That order stemmed from a PFA petition filed by Kruskie
1 The parties have been divorced since 2011. They share the same last
name, but references to Kruskie in this memorandum refer to Appellant’s ex-
husband.
*Retired Senior Judge assigned to the Superior Court.
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against Appellant.2 Appellant had been personally served with the temporary
order on April 4, 2018, and, by her own admission at trial, she was aware of
the order’s prohibitions at the time of the incident. N.T., 10/23/2019, at 7,
35, 68.
At the simultaneous jury/bench trial, the following evidence was
introduced.3 On May 6, 2018, around six p.m., Kruskie was grocery shopping
at a Weis Markets grocery store. Kruskie was checking out at a self-checkout
kiosk when he heard Appellant speak to him from the self-checkout kiosk
immediately to his right. He recognized her voice, and then saw she was
standing approximately an “arm’s length away.” Id. at 47. He was surprised
to see her there, and until that point, he did not know she was in the store.
According to Kruskie, Appellant then made a series of statements to him,
such as, “life as [you] know it is over and you’re done, this is it for you,
tonight’s the night, you’re finished.” Id. The statements made Kruskie feel
“worried” and “concerned.” Id. Appellant initially looked at Kruskie while
making the statements, and then looked away while she continued to speak.
2
Kruskie eventually obtained a final PFA order after a hearing, but the final
order is not the subject of the ICC charge.
3 A “simultaneous jury/bench trial” is one where the evidence is presented
simultaneously, and the jury renders a verdict on some charges and the trial
court renders a verdict on others. Commonwealth v. States, 938 A.2d
1016, 1017 (Pa. 2007). Although the record does not specify, presumably
the trial proceeded in this manner because the PFA Act does not provide a
right to a jury trial for a charge of ICC. See 23 Pa.C.S. § 6114(b)(3) (“The
defendant shall not have a right to a jury trial on a charge of ICC.”).
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Kruskie only had a few items, so he scanned them and got “out of there.”
Id. at 48. He left the store as quickly as he could and went to his parked
van. Appellant came outside and walked towards where Kruskie was parked.
Id. at 52. Kruskie drove away quickly to avoid further contact. Id. at 53.
The entire encounter lasted “just a few minutes.” Id. at 56. Kruskie
interpreted Appellant’s statements as threats. Id. at 55. He reported the
statements to the police and signed a criminal complaint that same day.
Officer Francis Petrovich from the Selinsgrove Borough Police
Department attempted to interview Appellant on the same night as the
incident. Officer Petrovich could see Appellant through the window of her
home, but Appellant did not respond to the officer’s loud knocking at her
door. Id. at 42-43.
As part of the police investigation, Officer Petrovich viewed the non-
audio surveillance video from Weis Markets. At trial, the Commonwealth
introduced still images from the video. Officer Petrovich and Kruskie
identified the woman in the photographs as Appellant. Officer Petrovich
testified that the photographs depicted Appellant at the self-checkout kiosk
number two at the same time Kruskie was at self-checkout kiosk number
three, directly in front of Appellant. Id. at 34. At the time of the incident,
one other self-checkout kiosk was available, and the store also had staffed
checkout lanes. Id. at 39, 42.
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Appellant testified in her own defense. She acknowledged that the
temporary PFA in effect at the time of the incident stated that she “shall not
abuse, harass, stalk, or threaten … Kruskie, in any place that [he] might be
found” and she “shall not contact [Kruskie] … by telephone or by any other
means.” Id. at 68. She admitted to being at the store and using the self-
checkout lane approximately two feet away from Kruskie. Id. at 65.
According to Appellant, she saw Kruskie at the self-checkout “[o]nce she
started that way and into the kiosk.” Id. at 68-69. Nevertheless, she
proceeded to use the self-checkout kiosk next to him. Id. at 73. Appellant
denied making the statements or speaking to Kruskie at all, and accused
Kruskie of lying because he is “very vindictive.” Id. at 65.
At the end of trial, the jury found Appellant not guilty of terroristic
threats and harassment. The trial court found Appellant guilty of ICC. The
case proceeded to a sentencing hearing for the ICC conviction on November
14, 2019. Prior to sentencing, Appellant orally moved to acquit based on the
weight of the evidence, arguing that the jury’s verdict reflected a finding
that Appellant did not communicate with Kruskie in a threatening manner.
The trial court denied the motion. N.T., 11/14/2019, at 2-3. The trial court
then sentenced Appellant to 60 days to 6 months of incarceration. Appellant
then orally moved for appeal bail, which the trial court denied. Id. at 6-7.
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Appellant timely filed a notice of appeal.4 On appeal, she raises two
issues: (1) “[w]hether the trial court erred when it found [Appellant] guilty
of [ICC] after the jury found [Appellant] not guilty on all [other] counts at
trial” and (2) “[w]hether the trial court erred when it denied [Appellant’s]
request for appeal bail.” Appellant’s Brief at 11.
In examining Appellant’s first issue, we bear the following in mind. ICC
is a charge asserting that a violation of an order of court occurred outside
the presence of the court. Commonwealth v. Padilla, 885 A.2d 994 (Pa.
Super. 2005). The PFA Act permits a court to hold an individual subject to a
protection order in contempt of such order and to punish the individual in
accordance with the law. 23 Pa.C.S. § 6114(a). “When reviewing a contempt
conviction ... we are confined to a determination of whether the facts
support the trial court decision. We will reverse a trial court’s determination
only when there has been a plain abuse of discretion.” Commonwealth v.
Wilson, 227 A.3d 928, 932-33 (Pa. Super. 2020) (citation and brackets
omitted).
Appellant’s entire argument on her first issue is premised upon the
jury’s not-guilty verdicts for the accompanying terroristic threats and
harassment charges. Appellant posits that if believed, the statements
alleged by Kruskie would be sufficient to establish the crimes of terroristic
4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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threats and harassment. Appellant’s Brief at 13. According to Appellant, the
jury’s acquittal on the terroristic threats and harassment charges reflected
the jury’s determination that the Commonwealth did not prove beyond a
reasonable doubt that Appellant made the statements in the manner
testified to by Kruskie. Id. at 15. Ergo, because the Commonwealth did not
prove Appellant made threatening or harassing statements, the trial court
erred or abused its discretion when it relied upon the same statements to
find Appellant guilty of ICC. Id. at 14-15.
Because Appellant cites only to the test for the sufficiency of the
evidence to prove an ICC charge, we will analyze her argument as such. See
Appellant’s Brief at 14.
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.
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Commonwealth v. Brumbaugh, 932 A.2d 108, 109-10 (Pa. Super. 2007).
This Court recently explained the elements required for a finding of
ICC.
Where a PFA order is involved, an ICC charge is designed to seek
punishment for violation of the protective order…. To establish
ICC, the Commonwealth must prove: 1) the order was
sufficiently definite, clear, and specific to the contemnor as to
leave no doubt of the conduct prohibited; 2) the contemnor had
notice of the order; 3) the act constituting the violation must
have been volitional; and 4) the contemnor must have acted
with wrongful intent.
Wilson, 227 A.3d at 932-33 (citing Brumbaugh, 932 A.2d at 110).
Wrongful intent “can be imputed by virtue of the substantial certainty that
one’s actions would place one in contact with the PFA petitioner in violation
of the PFA [o]rder.” Id. at 932-33 (citation omitted).
In the instant case, Appellant was aware that the temporary PFA order
prohibited all contact with Kruskie.5 While simply encountering the subject of
5 Appellant does not direct our attention to where in the record the
temporary PFA order might be found, and we did not discover the PFA order
during our own review of the record. The trial court incorporated the records
from the PFA matter into the record, but it was not transmitted to this Court
as part of the certified record. It is Appellant’s responsibility to ensure that
all necessary documents are transmitted to this Court. Commonwealth v.
Wyatt, 203 A.3d 1115, 1117 n.2 (Pa. Super. 2019).
The trial court stated in its Rule 1925(a) opinion that the temporary PFA
order prohibited Appellant from having “any contact” with Kruskie. Trial
Court Opinion, 3/20/2020, at 2. Because Appellant acknowledged the
prohibitions of the PFA order during her testimony and does not dispute the
trial court’s finding on appeal that the PFA order prohibited all contact, the
(Footnote Continued Next Page)
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a PFA order in a public grocery store is not enough to demonstrate wrongful
intent, Appellant, by her own admission, saw Kruskie but proceeded to use
the self-checkout kiosk only an arm’s length away from him. Kruskie
testified that Appellant looked directly at him and spoke to him in a
threatening manner. The trial court did not abuse its discretion by
concluding these actions were sufficient to constitute ICC.
The crux of Appellant’s argument is that the jury and the trial court’s
verdicts are inconsistent. However, inconsistency between a jury and trial
court’s verdicts on charges based on the same evidence presented at trial “is
not an adequate basis for granting relief.” Commonwealth v. Wharton,
504 A.2d 696, 699 (Pa. Super. 1991); see also Commonwealth v.
Yachymiak, 505 A.2d 1024, 1026 (Pa. Super. 1986) (affirming judgment of
sentence following trial court verdict that was inconsistent with a jury trial
verdict in a consolidated jury/bench trial). ”The law is clear that inconsistent
verdicts are permissible in Pennsylvania.” States, 938 A.2d at 1025.6
Inconsistent verdicts are permissible because a jury’s acquittal typically
(Footnote Continued) _______________________
absence of the PFA order from the certified record has not impacted our
appellate review.
6 Although our Supreme Court has “not spoken on the issue in terms of
simultaneous jury/bench trials,” it has recognized that the Superior Court’s
“decisions in Wharton and Yachymiak, … in the absence of any comment
by [the Pennsylvania Supreme] Court, constitute the current state of the law
in this Commonwealth.” States, 938 A.2d at 1025.
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“cannot be interpreted as a specific finding in relation to some of the
evidence.” Commonwealth v. Moore, 103 A.3d 1240, 1250 (Pa. 2014)
(citing Commonwealth v. Carter, 282 A.2d 375, 376 (Pa. 1971) (internal
quotation marks omitted)).7
Appellant’s argument is based upon an improper assumption that the
jury’s verdict meant it rejected Kruskie’s testimony. However, a jury verdict
of acquittal may result from an exercise of lenity, or a compromise or
mistake by the jury. Moore, 103 A.3d at 1250. Moreover, as the sole
factfinder on the ICC charge, the trial court was entitled to credit Kruskie’s
trial testimony regarding Appellant’s statements to him, even if the jury did
not. See Wharton, 504 A.2d at 699 (“[I]n a consolidated jury/nonjury trial,
the trial court is not required to defer to the findings of the jury on common
factual issues.”).
Based on the foregoing, we discern no abuse of discretion in the trial
court’s determination that the evidence was sufficient to prove Appellant
committed ICC.
7
Cf. Commonwealth v. Rankin, 235 A.3d 373 (Pa. Super. 2020)
(concluding that notwithstanding the lack of specific factual findings by the
jury, for the purpose of double jeopardy and collateral estoppel, the
evidence and arguments at trial were such that a rational jury could have
only acquitted based on the same element relied upon by the trial court
when determining Appellant’s guilt under summary offenses). Because
Appellant does not make this argument or develop a claim regarding double
jeopardy or collateral estoppel, we need not consider the applicability of
Rankin further.
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We turn now to Appellant’s second argument, in which she avers that
the trial court erred by denying her request for bail pending appeal.8
Appellant’s argument is sparse and her analysis of the law is meager. She
merely cites to Pa.R.Crim.P. 521(B)(1), which is the rule regarding bail after
a sentence of less than two years’ imprisonment9 and states that her bail
was revoked in September 2019, without any explanation as to why it was
revoked or why reinstatement of bail was warranted on appeal after it had
been revoked.10 Appellant’s Brief at 15-16. She posits in a one-sentence
argument devoid of analysis that the trial court erred by denying her request
for bail pending appeal because “a meritorious issue existed on appeal” and
she would remain incarcerated on other charges in unrelated cases. Id.8 Technically, to invoke our jurisdiction to review an order pertaining to bail,
Appellant should have filed a petition for review pursuant to Chapter 15 of
the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 1762(b)(2).
However, a notice of appeal seeking review of such an order will be treated
as a petition for review, thereby allowing this Court to exercise appellate
jurisdiction. See Commonwealth v. Parsons, 166 A.3d 1242, 1245 (Pa.
Super. 2017).
9 That subsection of the rule provides, “[w]hen the sentence imposed
includes imprisonment of less than 2 years, the defendant shall have the
same right to bail as before verdict, unless the judge, pursuant to paragraph
(D), modifies the bail order.” Pa.R.Crim.P. 521(B)(1).
10
Exacerbating matters is Appellant’s failure to comply with the
requirements of Pa.R.A.P. 2117, a rule that details the required components
of a statement of the case. Appellant’s statement of the case lacks citations
to the record and a “closely condensed chronological statement, in narrative
form, of all the facts which are necessary to be known in order to determine
the points in controversy.” Pa.R.A.P. 2117(a).
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Furthermore, she does not point to the place in the record where she made
the request for bail, in contravention of our Rules of Appellate Procedure.
See Pa.R.A.P. 2119(e) (requiring appellants to specify place in the record
where a claim was preserved before the trial court). Accordingly, we find her
claim regarding the denial of bail to be waived due to the lack of a developed
argument in her brief and her failure to provide necessary context for her
claim.11
Based on the foregoing, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
11 Even if we did not find it to be waived, her argument does not convince us
that the trial court abused its discretion in denying her request for bail.
Although Appellant failed to comply with Pa.R.A.P. 2119(e), we observe that
she made a request for bail pending appeal during the sentencing hearing.
See N.T., 11/14/2019, at 8-9. The trial court denied such request with an
explanation of several reasons, which included the nature of the ICC
violation; the testimony from a child welfare caseworker regarding
Appellant’s conduct towards the caseworker at a grocery store during a prior
hearing for bail revocation; an unspecified prior conviction; and a March 4,
2019 psychological evaluation indicating that Appellant’s engagement in
violent and/or threatening behavior was unlikely to change. Id.; see also
Pa.R.Crim.P. 521(c) (“Whenever bail is refused or revoked under this rule,
the judge shall state on the record the reasons for this decision.”). Appellant
did not oppose the statement of reasons at the hearing and she makes no
attempt to argue against the reasons here. Accordingly, she has failed to
convince us that the trial court abused its discretion in denying her request
for bail pending appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/21/2021
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