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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

* 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.

____________________________________________

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 selfprotection 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

____________________________________________

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 welldefined, 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