Com. v. Funk, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANA PEZZETTI-FUNK :
:
Appellant : No. 3026 EDA 2019
Appeal from the Judgment of Sentence Entered September 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002938-2018
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 17, 2020
Appellant, Dana Pezzetti-Funk, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following her
nonjury conviction of intimidation of witnesses or victims,1 criminal
conspiracy,2 and terroristic threats.3 On appeal, Appellant challenges the
sufficiency and weight of the evidence. For the following reasons, we affirm.
The facts underlying Appellant’s convictions were developed during the
non-jury trial as follows. Appellant and Stephanie Pezzetti-Funk (Co-
defendant) are sisters. Gia Fuscellaro (Complainant) was in a romantic
relationship with Appellant’s former boyfriend, with whom Appellant shares a
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1 18 Pa.C.S. § 4952(a)(1).
2 18 Pa.C.S. § 903(c).
3 18 Pa.C.S. § 2706(a)(1).
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child. N.T. Trial, 6/20/19, at 13-14. In June of 2016, Complainant was the
complaining witness in a separate case involving both Appellant and Co-
defendant. Id. at 27-28. A preliminary hearing for that matter was scheduled
for Monday, June 27, 2016. Id.
On or about June 24, 2016,4 Complainant was on Broad Street in the
City of Philadelphia when Appellant approached her and said, “Hello, bitch.
Are you going to court on Monday? I hope you don't go to court on Monday.”
N.T., Trial, at 27. Complainant also testified Appellant “told me to drop the
charges.” Id. at 19. She stated the Broad Street encounter made her feel
“upset” and “threatened.” Id. at 20, 42. Complainant notified the Assistant
District Attorney (ADA) of the incident and explained she “didn’t want to be in
contact with [Appellant and Co-defendant]” when leaving the upcoming
preliminary hearing. Id. at 29, 41-42. Therefore, Complainant arranged to
leave the courtroom first, followed later by Appellant and Co-defendant. Id.
at 29, 41-42. In its opinion, the trial court indicated the “staggered release”
was court-ordered. Trial Ct. Op., 1/29/20, at 2.
However, Complainant testified that, as she exited the courtroom
following the preliminary hearing on Monday, June 27, 2016, Appellant and
Co-defendant immediately followed her and “were right behind [her] the
whole time.” N.T., Trial, at 42. She testified that “[Appellant] was yelling
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4 There was a discrepancy in the testimony as to whether the encounter
occurred on Friday, June 24th, or Saturday, June 25th. N.T., Trial, at 35-37.
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things, calling [her] a bitch and a cock sucker[.]” Id. at 15. At the same
time, Complainant stated that Co-defendant approached her, “put her fists
up[,] and said I better drop the charges[,]” and that “when this is over she’s
going to beat me up[.]” Id. at 15, 40. During this encounter, Appellant stood
three to five feet away. Id. at 17, 34. Complainant testified the elevator
encounter made her feel “upset [and s]cared.” Id. at 19. Immediately
thereafter, Complainant attempted to contact the ADA, but when she was
unable to reach them, she filed a police report that same day. Id. at 30-31.
Appellant was subsequently charged with intimidation of witnesses or
victims, criminal conspiracy, and terroristic threats. However, on August 15,
2016, the trial court dismissed the charges for lack of evidence establishing a
prima facie case. See Trial Docket Entry, 8/15/16. On October 5, 2016, the
trial court denied the refiling of charges, and the Commonwealth filed a timely
appeal. See Trial Docket Entry, 10/5/16. On February 2, 2018, a panel of
this Court reversed the trial court’s order and remanded for further
proceedings, concluding the trial court erred in denying the Commonwealth’s
motion to refile charges where the evidence presented at the preliminary
hearing showed that Appellant, “acting in concert with her sister, threatened
[Complainant] to prevent her from testifying,” and Complainant “felt both
intimidated and scared as a result.” Commonwealth v. Pezzetti-Funk,
3368 EDA 2016 (unpub. memo. at 5, 7) (Pa. Super. Feb. 2, 2018). The panel
determined that this evidence “was all that was necessary to establish a prima
facie case.” Id. at 6.
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Upon remand, the charges were reinstated, and the case proceeded to
a joint nonjury trial with Co-defendant on June 6, 2018. The trial court found
Appellant guilty of all charges. On September 23, 2019, the trial court
sentenced Appellant to a term of 11½ to 23 months’ imprisonment, followed
by three years’ probation on each count and directed the sentences be served
concurrently. Order, 9/23/19, at 1-2. Appellant filed an untimely post-
sentence motion on October 6, 2019,5 challenging both the sufficiency and
weight of the evidence supporting her convictions. On October 22, 2019,
Appellant filed a timely notice of appeal.6
Appellant presents one question on appeal:
Was the evidence insufficient to sustain the conviction for Witness
Intimidation 18 [Pa.C.S.] § 4952[(a)(1)]; Conspiracy 18 [Pa.C.S.]
§ 903[(c)]; and Terroristic Threats 18 [Pa.C.S.] § 2796[(a)(1)]?
Appellant’s Brief at 11.
Our review of a challenge to the sufficiency of the evidence is well-
established:
The standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact to
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5 Appellant filed a post-sentence motion thirteen days after the court-
imposed sentence. See Pa.R.Crim.P 720(A)(1) (“[A] written post-sentence
motion shall be filed no later than 10 days after imposition of sentence.”)
(emphasis added).
6Appellant complied with the trial court’s directive to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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find that each element of the crimes charged is established beyond
a reasonable doubt. The Commonwealth may sustain its burden
of proving every element beyond a reasonable doubt by means of
wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt raised
as to the accused's guilt is to be resolved by the fact-finder. As an
appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record. Therefore, we will not
disturb the verdict 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.
Commonwealth v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017)
(citation omitted). Further, we emphasize the “fact finder is free to believe
all, part, or none of the evidence.” Commonwealth v. Sexton, 222 A.3d
405, 416 (Pa. Super. 2019) (citation omitted).
Preliminarily, we note that our review of Appellant’s brief reveals no
discussion of her claim that the evidence was insufficient to support her
conviction of criminal conspiracy. See Appellant’s Brief at 22-50. This Court
addresses only those issues properly presented and developed in an
appellant’s brief, as required by the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2101, 2119(a). Therefore, issues preserved and
presented, but not developed in a brief’s argument section, will be deemed
waived. Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016).
Accordingly, Appellant has waived any sufficiency challenge to her conspiracy
conviction.
With regard to her conviction of witness intimidation, Appellant argues
the evidence was “insufficient as a matter of law to sustain [her] conviction
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for the crime of intimidation that was charged in this case.” Appellant’s Brief
at 23. Appellant emphasizes she was charged and convicted of witness
intimidation under Subsection 4952(a)(1), which “criminalize[s] an offender
who is attempting to prevent a witness from reporting a crime.” Id.(emphasis added). However, here, the “contact with [Complainant] took place
after [Complainant] had already reported [a] crime to the police[,]” and the
trial court found her guilty of attempting to intimidate Complainant “to
withhold testimony . . . relating to the commission of a crime[,]” which is
criminalized under Subsection 4952(a)(3). Id. at 23-24. Thus, she insists
the evidence did not satisfy the elements of the subsection of the witness
intimidation statute under which she was charged. See id. at 25.
Furthermore, Appellant argues “this case was nothing more than ‘trash talk’,
a continuing verbal squabble among women who had competing romantic
interests for the same boyfriend[.]” Id. at 23. She maintains the evidence
was insufficient to establish her intent to intimidate Complainant under the
statute when, considering their history, the incidents occurred during an
“unplanned chance meeting on a busy street in broad daylight, and . . . outside
a crowded courtroom, with other people present[.]” Id. at 33. Appellant also
alleges the trial court disregarded evidence “which may have cast doubt as to
the credibility of” Complainant, namely “violent and vulgar Instagram
screenshots” she directed at Appellant. Id. at 40, 42.
In support of Appellant’s conviction, the trial court concluded Appellant
acted “with the specific intent to deter Complainant from pursuing the criminal
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matter against [her].” Trial Ct. Op. at 6. It emphasized that mere days before
the preliminary hearing, Appellant approached the Complainant on the street
and attempted to intimidate her to withhold her testimony, and then,
immediately following the preliminary hearing, Appellant, in defiance of a
court instruction to allow Complainant to leave the courtroom first, conspired
with Co-defendant to again threaten and intimidate Complainant. Id. The
court found these incidents provided a sufficient basis to support Appellant’s
conviction for intimidation of witnesses or victims. Id. at 7.
For ease of review, we set forth the statutory provision at issue in this
appeal. A person may be found guilty of intimidation of witnesses or victims
if, inter alia,
(a) . . . with the intent to or with the knowledge that [her] conduct
will obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, [she] intimidates or attempts to
intimidate any witness or victim to:
(1) Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge concerning
any information, document or thing relating to the
commission of a crime.
* * *
(3) Withhold any testimony, information, document or thing
relating to the commission of a crime from any law
enforcement officer, prosecuting official or judge.
18 Pa.C.S. § 4952(a)(1), (3).
Before we consider the merits of the issue raised on appeal, we must
first determine whether the issue has been properly preserved and developed
for our review. When so ordered, litigants are required to “concisely identify
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each error that the appellant intends to assert with sufficient detail to
identify the issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii)
(emphases added). Errors identified in a 1925(b) concise statement “will be
deemed to include every subsidiary issue that was raised in the trial court
. . . .” Pa.R.A.P. 1925(b)(4)(v) (emphasis added). Compliance with the
Pa.R.A.P. 1925(b) concise statement requirement guarantees the creation of
“records amenable to meaningful appellate review” by affording trial courts
the opportunity to opine on the issues litigants intend to raise on appeal.
Commonwealth v. Castillo, 888 A.2d 775, 779 (Pa. 2005). Where a
Pa.R.A.P 1925(b) concise statement is “too vague for the trial court to identify
and address the issue to be raised on appeal[,]” the ambiguity can result in
waiver. Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001).
Here, in her concise statement, Appellant argued simply that “[t]he
evidence of witness intimidation . . . was insufficient as a matter of law to
establish the [Appellant’s] guilt beyond a reasonable doubt.” Appellant’s
Statement of Errors Complained of on Appeal, 1/5/20, at 1. She further
argues the incidents in question “established a mere minor squabble with
vulgar language and gestures,” which did not rise to the level of witness
intimidation, as her actions did not establish a “specific intent” to interfere
with the administration of justice. Id. at 1-2. However, Appellant did not
challenge the appropriateness of the subsection under which she was charged
and convicted. Thus, the trial court did not address this argument in its
opinion. Nevertheless, Appellant now attempts to define the scope of her
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appeal by arguing she was convicted of violating a subsection under which she
was not charged. Appellant’s Brief at 23-24. Because this claim was not
raised in the trial court or sufficiently identified in her concise statement, it is
waived for our review. See Castillo, 888 A.2d at 779; Dowling, 778 A.2d at
686.
Moreover, we note Appellant’s argument implies she was charged with
the wrong subsection of the witness intimidation statute. However, “[a]
defendant waives [a] challenge to a defect in the criminal information if the
defendant was placed on notice of the correct charge, defended against the
correct charge, and made no objection to the discrepancy in the charged
offense.” Commonwealth v. Raymond, 233 A.3d 809, 814 (Pa. Super.
2020). This Court’s discussion in Raymond is instructive.
In that case, the defendant raised a sufficiency challenge to his
conviction based on a defect in the criminal information. Raymond, 233 A.3d
at 811. Although he was charged with witness intimidation under Subsection
4952(a)(1), he argued the evidence was insufficient to convict him under that
subsection; rather, he conceded the Commonwealth presented sufficient
evidence for a conviction under Subsections 4952(a)(2) and (a)(3). Id. at
813. Indeed, at trial, the prosecution proceeded on a theory that the
defendant “had attempted to convince the complainant to change his
testimony or refrain from testifying against” him. Id. at 815-16. After finding
the defendant was on notice of the defect, the court determined he had
“defended himself against the appropriate charge and [had] made no
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objection, either in his pretrial motions or at any point at trial, to the
prosecution's theory.” Id. As a result, the Court concluded the defendant
waived his challenge to the defect in the criminal information. Id.
In the present case, the same is true. Regardless of the crime charged
in her information, Appellant was on notice that the Commonwealth intended
to prove she threatened Complainant in an attempt to prevent her from
testifying under Subsection (a)(3). A panel of this Court highlighted that fact
in Appellant’s first appeal. See Pezzetti-Funk, 3368 EDA 2016 (unpub.
memo. at 5) (“The Commonwealth presented evidence at the preliminary
hearing that [Appellant], acting in concert with her sister, threatened
[Complainant] to prevent her from testifying.”). Appellant never argued
before the trial court that her actions did not support a conviction under
Subsection (a)(1) because Complainant had already reported the crime.
Instead, she defended the charge by attempting to impeach the credibility of
Complainant. N.T., Trial, at 59-64. Accordingly, even if this claim were
preserved in Appellant’s Rule 1925(b) statement, we would conclude she is
entitled to no relief.
Appellant also asserts the trial court disregarded evidence “which may
have cast doubt as to the credibility of” Complainant, namely “violent and
vulgar Instagram screenshots” she directed to Appellant. Appellant’s Brief at
40, 42. Claims focused on the credibility of witnesses challenge the weight,
not the sufficiency, of the evidence. Commonwealth v. Palo, 24 A.3d 1050,
1055 (Pa. Super. 2011). A challenge to the weight of the evidence is
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“addressed to the discretion of the trial court,” Commonwealth v. Thomas,
194 A.3d 159, 167 (Pa. Super. 2018) (citation omitted), and, thus, must first
be raised before the trial court either before sentencing or in a timely post-
sentence motion. See Pa.R.Crim.P. 607, 720(a). Although Appellant included
a challenge to the weight given Complainant’s credibility in a post sentence
motion, that motion was untimely filed, and her claim is therefore waived.
See Commonwealth v. Wrecks, 931 A.2d 717, 719 (Pa. Super. 2007) (“An
untimely post-sentence motion does not preserve issues for appeal.”).
Lastly, Appellant challenges the sufficiency of the evidence supporting
her conviction of terroristic threats. Appellant contends she “never uttered
any words threatening a crime of violence . . . against [Complainant].”
Appellant’s Brief at 45. Further, she maintains “a cl[e]nched fist is not
communication [as is] required by section 2706[.]” Id. at 50. Additionally,
Appellant asserts her statements resulted from an agitated and angry state of
mind and the terroristic threat statute was not intended to criminalize such
behavior. Id. at 44, 47.
A person may be convicted of terroristic threats if she “communicates,
either directly or indirectly, a threat to commit any crime of violence with
intent to terrorize another.” 18 Pa.C.S. § 2706(a)(1). As defined in the
statute, “the term ‘communication’ means conveys in person . . . .” 18 Pa.C.S.
§ 2706(e). “[T]he harm sought to be prevented by the statute is the
psychological distress that follows from an invasion of another’s sense of
personal security.” Commonwealth v. Kline, 201 A.3d 1288, 1290 (Pa.
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Super. 2019) (quotation omitted), appeal denied, 216 A.3d 1038 (Pa. 2019).
It is immaterial whether the perpetrator has the ability to execute the threat
or whether the victim actually believes the threat will be carried out. Id.Furthermore, this Court has held, under proper circumstances, gestures
suggesting the presence of danger may sufficiently communicate an intent to
terrorize. Id. at 1291. However, the terroristic threats statute was not meant
to criminalize “‘spur-of-the moment’ threat[s] made during a period of
‘transitory anger.’” Id. at 1291-92.
The decision in Kline instructive. In that case,
the victim testified that on at least seven prior occasions [the
defendant] would stare at her, from his nearby property, with a
“flat affect” and watch her and her family enter and exit the home.
She also testified that [the defendant] would make eye contact
with her and keep staring at her until her family would finally enter
their house. These occurrences made the victim feel on edge, put
her on “heightened alert,” and made her wonder “[w]hat . . . he
[was] going to do to [her children].” On the date of the alleged
threatening incident, the victim testified that [the defendant]
stepped “deliberately at [her] car,” put both hands up and made
a gun-firing motion at her. The victim testified that she was
psychologically distressed at [the defendant’s] hand gesture.
Instead of retreating to her home when [the defendant] made the
gesture, she continued to drive directly to the police station where
Trooper Frank Ross testified that the victim “look[ed like]
someone that was terrorized.
Kline, 201 A.3d at 1290-91. The defendant was subsequently convicted on
one count of terroristic threats. Id. at 1289. On appeal, this Court concluded
the conviction resulted directly from the psychological distress caused by the
defendant’s invasion of the victim’s sense of personal security. Id. at 1291.
Additionally, the court found, “[u]nlike a ‘spur-of-the-moment’ threat made
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during a period of ‘transitory anger,’” the incident followed seven separate
occasions where the defendant would stare at the victim and her family “‘with
a flat affect’ as they entered and exited the car and house.” Id. at 1291-92
(footnote omitted). Accordingly, the Court concluded, under the
circumstances of the defendant’s case, the evidence was sufficient to prove
he communicated an intent to terrorize the victim beyond a reasonable doubt.
Id. at 1292.
Applying the foregoing analysis, Kline is in direct conflict with
Appellant’s assertion that “a cl[e]nched fist is not communication required by
section 2706[.]” See Appellant’s Brief at 50. Rather, Appellant relies upon a
non-precedential decision of this Court, Commonwealth v. Maxey, 2821
EDA 2014 (unpub memo.) (Pa. Super. Jan. 5, 2016), for the proposition that
“body language alone cannot constitute ‘communication’ for the purposes of
a terroristic threat conviction.” Appellant’s Brief at 49. In Maxey, this Court
reversed a conviction for terroristic threats, finding “solely nonverbal conduct,
especially consisting only of raising ones hands to his chest,” did not constitute
terroristic threats “in light of the Commonwealth’s inability to present evidence
that Appellant uttered any words to suggest that he intended to terrorize [the
victim].” Maxey, 2821 EDA 2014 (unpub. memo. at 8).
Appellant’s reliance on Maxey is improper. First, pursuant to the
Superior Court’s Internal Operating Procedures (IOPs), “[a]n unpublished
memorandum decision filed prior to May 2, 2019, shall not be relied upon or
cited by a Court or a party in any other action or proceeding[.]” Pa. Super.
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Ct. IOP § 65.37. As Maxey was filed on January 5, 2016, almost three and
one-half years before the May 2, 2019, IOP date, Appellant’s reliance on
Maxey is prohibited. Furthermore, we conclude Maxey does not support
Appellant’s claim that nonverbal conduct is insufficient evidence of an intent
to terrorize. Appellant’s Brief at 21, 45. The ratio decidendi in Maxey was
not joined by a majority of the panel. Judge Panella concurred only in the
result, and Judge Fitzgerald filed a concurrence, writing separately “that under
appropriate circumstances, physical gestures or other symbols may ‘convey’
a threat to commit a crime of violence with the intent to terrorize another”
although he concluded “such circumstances were not present in this case.”
Maxey, 2016 WL 71924, at *1, *3 (Fitzgerald, J., concurring) (citations
omitted).
Here, the trial court explained Appellant’s conviction was supported by
evidence of Complainant’s “prompt reporting following each incident[,]
indicat[ing] that she experienced the distress sought to be prevented under
the statute.” Trial Ct. Op. at 8. Viewing the evidence in “a light most favorable
to the verdict winner[,]” we reject Appellant’s assertion that her behavior was
a “‘spur-of-the moment’ threat made during a period of ‘transitory anger.’”
Kline, 201 A.3d at 1291-92; Von Evans, 168 A.3d at 983. Rather, in the
present case, Appellant first attempted to intimidate the victim from testifying
before the preliminary hearing. See N.T., Trial, at 27 (Appellant told
Complainant “I hope you don’t go to court on Monday.”). She then defied a
court-ordered “staggered release” after the hearing and screamed obscenities
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at Complainant in the courthouse, while Co-defendant, her sister, approached
Complainant, told her she “better drop the charges,” and “put her fists up and
said, when this is over she’s going to beat [Complainant] up[.]” Id. at 15,
18, 34, 40. Thus, Appellant’s actions, in concert with Co-defendant, were
sufficient to establish Appellant communicated to Complainant a threat to
commit a crime of violence with the intent to terrorize her. See Kline, 201
A.3d at 1291-92. Accordingly, no relief is warranted.
Because Appellant has failed to demonstrate the evidence was
insufficient to support her convictions, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2020
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