J. S11036/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MARY FRICK, : No. 70 EDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence, November 30, 2017,

in the Court of Common Pleas of Montgomery County

Criminal Division at No. CP-46-SA-0000390-2017

BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 23, 2019

Mary Frick appeals from the November 30, 2017 judgment of sentence 

entered in the Court of Common Pleas of Montgomery County following her 

summary convictions in a trial de novo of harassment (engages in a course 

of conduct or repeatedly commits acts which serve no legitimate purpose) and 

criminal mischief (intentionally damages real or personal property of 

another).

1 Appellant received a sentence of 48 hours of incarceration on the 

harassment conviction and an aggregate $600 fine.

2 We affirm. 

 

1 18 Pa.C.S.A. §§ 2709(a)(3) and 3304(a)(5), respectively.

2 Appellant’s period of incarceration for the harassment conviction was to 

commence on January 3, 2018. Appellant was found guilty of criminal 

mischief with no assigned penalty. (Order of court, 11/30/17.) Appellant was 

fined $300 on each conviction for an aggregate of $600. (See id.; see also

trial court opinion, 6/14/18 at 3 (citing trial transcript 60:12-14).)
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The trial court set forth the following factual history:

The case grew out of a running dispute [appellant] 

had with a couple who had moved into a townhouse 

next to hers. 

The evidence at trial showed, and the Court found, 

that [appellant] over many months engaged in a 

course of conduct of directing abusive language, 

offensive gestures, and provocative signs at the 

neighbors along the property line where her driveway 

and theirs adjoined, twice throwing dog feces onto 

their property, and once deliberately using her car to 

knock over a 400-pound planter--which the neighbors 

had placed on their side of the line to prevent 

[appellant] from parking too close to their 

automobiles and hitting them with [appellant’s] car 

door--spilling the planter’s contents onto the ground. 

The Court received evidence of [appellant’s] conduct 

toward the neighbors consisting of photographs and 

videotapes the couple had made as well as oral 

descriptions by the man, who testified that as a result 

of the conduct the couple had to move out of the 

house less than two years after purchasing it.

Trial court opinion, 6/14/18 at 1-2.

The record reflects that at the conclusion of the Commonwealth’s case, 

appellant moved for a judgment of acquittal on the basis, inter alia, that 

there was no evidence of damage to the planter to support the charge of 

criminal mischief. The trial court denied appellant’s motion.

Following sentencing, appellant filed a post-sentence motion to modify 

the sentence which the trial court denied. Appellant filed a timely notice of 

appeal. The trial court ordered appellant to file a statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely 

complied. The trial court subsequently filed its Rule 1925(a) opinion.
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Appellant raises the following issue for our review:

3

Did the Trial Court improperly find [appellant] guilty 

of Criminal Mischief pursuant to 18 Pa.C.S.[A.]

§ 3304(a)(5) when the evidence was insufficient as a 

matter of law to find [appellant] guilty of that offense?

Appellant’s brief at 2.

Our standard and scope of review for a sufficiency of the evidence claim 

is well settled.4

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 

 

3 We note that although appellant raised three issues in her Rule 1925(b)

statement, appellant abandoned two of those issues on appeal.

4 We acknowledge the Commonwealth’s argument in its brief that appellant 

waived her sufficiency claim because appellant failed to provide a complete 

record for purposes of appeal in that appellant did not provide the videotapes 

as part of the record. In reviewing the record, we find that three of the four 

videotape exhibits relate to the conviction for harassment which appellant 

does not raise on appeal. (Trial transcript, 6/18/18 at 18-27.) The contents 

of the final videotape, Exhibit “C-2,” were described by the trial court as: 

“[T]here’s a video of [appellant] coming out of her house, getting into this car, 

backing in her driveway[,] and deliberately crashing into the flower box.” 

(Trial court opinion, 6/14/18 at 13.) In light of the trial court’s description of 

what the videotape showed, we do not find the videotape “necessary to allow 

a complete and judicious assessment of the issues raised on appeal.” 

Commonwealth v. Wint, 730 A.2d 965, 967 (Pa.Super. 1999) (citation 

omitted). Therefore, we find no waiver of appellant’s claim.
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of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may 

sustain its burden of proof or 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 the 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004) 

(citation omitted).

Criminal mischief is defined as:

§ 3304. Criminal mischief

(a) Offense defined.--A person is guilty of 

criminal mischief if he:

. . . .

(5) intentionally damages real or 

personal property of another.

18 Pa.C.S.A. § 3304(a)(5).

Here, appellant argues that a conviction of criminal mischief under 

18 Pa.C.S.A. § 3304(a)(5) requires some type of actual, physical, or visible 

damage to the property to be proven and that the trial court erred in finding 

damage to the planter had been established. (Appellant’s brief at 10.) We 

disagree.

In viewing the evidence in the light most favorable to the 

Commonwealth, as the verdict winner, this court finds that there is sufficient 
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evidence to support the trial court’s finding of the element of damage to the 

victim’s property beyond a reasonable doubt to support the conviction of 

criminal mischief. The trial court found damage to the planter when appellant, 

using her automobile, caused the planter to topple and spill its contents onto 

the victim’s driveway to the extent the victim had to undertake significant 

efforts to clean up the spill and rebuild the planter to withstand further blows. 

(Trial court opinion, 6/14/18 at 14.) This finding of damage is supported by 

the photographs the trial court viewed of the planter toppled and its contents 

spilled on the victim’s driveway; the testimony of the victim that the planter 

had been toppled, its contents spilled, and the efforts the victim took to 

remedy the situation; and the videotape which the trial court described as 

showing appellant driving into the planter with her automobile.5 This court 

has held that for purposes of criminal mischief, damage to the victim’s 

property need not be permanent, only that some type of damage was done. 

See Commonwealth v. Vida, 715 A.2d 1180, 1181 (Pa.Super. 1998)

(finding that to obtain a criminal mischief conviction, damage “does not by 

definition mean permanent damage”). In this case, the evidence shows 

beyond a reasonable doubt that the planter, in its up-right position, was not 

the same immediately following appellant’s act of hitting the planter with her 

automobile. After appellant’s act, the planter was toppled and its contents 

 

5 Appellant admits that the planter was toppled. (Appellant’s brief at 10 (“all 

that happened was that the planter was tipped over.”).)
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spilled, thereby establishing the element of damage for purposes of criminal 

mischief. Therefore, appellant’s claim fails.

Judgment of sentence affirmed.

Murray, J. joins this Memorandum.

Shogan, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/19