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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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 

____________________________________________

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:

____________________________________________

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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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 

____________________________________________

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