Hendrickson, K. v. Semelsberger, P. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHLEEN HENDRICKSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PERRY SEMELSBERGER :
:
Appellant : No. 488 WDA 2021
Appeal from the Order Entered February 4, 2021
In the Court of Common Pleas of Cambria County Civil Division at No(s):
2697-2020
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 23, 2021
Perry Semelsberger (“Semelsberger”) appeals the judgment of sentence
of six months of incarceration imposed after the trial court found him guilty of
indirect criminal contempt of an existing protection from abuse (“PFA”) order.
We affirm.
In 2020, Kathleen Hendrickson (“Hendrickson”) filed a petition pursuant
to the PFA Act against Semelsberger. The parties ultimately agreed to a final
protection order, which would be in effect for one year and prohibited
Semelsberger from communicating with Hendrickson. Approximately six
months after the entry of the final PFA order, Semelsberger mailed three
letters to Hendrickson. In the letters, Semelsberger expressed his love for
Hendrickson, stated he would not leave her alone, and threatened to harm
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* Retired Senior Judge assigned to the Superior Court.
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himself and others if she did not return his love. Following a hearing, the trial
court found Semelsberger guilty of indirect criminal contempt and sentenced
him to six months of incarceration, to be served consecutive to any other
sentences he was serving. Semelsberger filed a post-sentence motion to
modify sentence, which the trial court denied.
This timely filed appeal followed. Both Semelsberger and the trial court
have complied with the mandates of Pa.R.A.P. 1925. Semelsberger presents
a single issue for our review: “The trial court erred/abused its discretion in
sentencing the Defendant without considering his rehabilitative needs as set
forth in 42 Pa.C.S.A. 9721(b), resulting in an excessive sentence.”
Semelsberger’s brief at 5.
Semelsberger’s sole issue implicates the discretionary aspects of his
sentence. Such a challenge does not entitle an appellant to review as of right.
Rather, an appellant challenging the discretionary aspects of his sentence
must first invoke this Court’s jurisdiction via a four-part test, which we have
detailed as follows:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Taylor, 137 A.3d 611, 618 (Pa.Super. 2016) (en banc)
(cleaned up). If an appellant invokes our jurisdiction, we then review the
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merits of the claim and “may reverse only if the sentencing court abused
its discretion or committed an error of law.” Commonwealth v. Cook, 941
A.2d 7, 11 (Pa.Super. 2007) (cleaned up).
Semelsberger filed a timely notice of appeal and post-sentence motion,
included a Rule 2119(f) statement in his brief, and raised a substantial
question. See Commonwealth v. Caldwell, 117 A.3d 763, 769-70
(Pa.Super. 2015) (en banc) (finding substantial question where appellant
raised excessive sentencing claim with an assertion that the sentencing court
failed to consider mitigating factors). Although Semelsberger seemingly
complied with this four-part test, in order to satisfy the second requirement,
the “challenges to a court’s sentencing discretion must be raised during
sentencing or in a post-sentence motion in order for this Court to consider
granting allowance of appeal.” Commonwealth v. Rush, 959 A.2d 945, 949
(Pa.Super. 2008). Indeed, “[a]bsent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). “[F]or any claim that was
required to be preserved, this Court cannot review a legal theory in support
of that claim unless that particular legal theory was presented to the trial
court.” Rush, supra at 949; see also Pa.R.A.P. 302(a) (“Issues not raised
in the trial court are waived and cannot be raised for the first time on
appeal.”). Therefore, even if an appellant sought to attack the discretionary
aspects of his sentence in the trial court, he cannot support a discretionary
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sentencing claim on appeal “by advancing legal arguments different than the
ones that were made when the claims were preserved.” Id.On appeal, Semelsberger argues that the trial court failed to consider
his individualized circumstances, imposed an aggravated range sentence
without considering mitigating factors, and imposed a consecutive sentence
that resulted in a manifestly excessive sentence. Semelsberger’s brief at 10-
11. However, he did not raise those legal arguments at sentencing or in the
post-sentence motion. Although the transcript of Semelsberger’s PFA
contempt hearing does not include the portion of the hearing when
Semelsberger was sentenced, the trial court, at that point during the hearing,
dictated Semelsberger’s sentencing order. See N.T., 1/29/21, at 24 (noting
“Order of Court filed under separate cover” following the trial court’s finding
of guilt). The order directed Semelsberger to undergo a mental health
evaluation, and the trial court has noted that Semelsberger’s “counsel had
nothing further to add regarding [his] mental health at that time.” Trial Court
Opinion, 6/8/21, at 3.1 Moreover, while Semelsberger filed a post-sentence
motion, he merely sought a lesser sentence based upon the letters being non-
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1 We observe that if Semelsberger raised these claims at sentencing, it was
his responsibility to ensure a certified record that included preservation of
those issues. It “is unequivocal that the responsibility rests upon the appellant
to ensure that the record certified on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.” Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa.Super. 2006)
(en banc).
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violent and his need to provide care for his parents. See Post-Sentence
Motion, 2/8/21. Since he did not raise his appellate legal arguments before
the trial court, he has failed to preserve his discretionary aspects of sentencing
claim. Accordingly, Semelsberger is not entitled to relief.
Even if we concluded that Semelsberger preserved his arguments, he
would not be entitled to relief. It is evident that the trial court considered all
relevant factors and did not impose an excessive sentence. The trial court
observed that only a few months before Semelsberger sent the letters, he was
found guilty of three violations of a different protective order and sentenced
to four months of incarceration. N.T., 1/29/21, at 22. In light of the evidence
that such a sentence “wasn’t enough to help him understand the severity of
his actions or the fact it’s a protective order. . . [that] had to be followed[,]”
the trial court queried why a maximum jail sentence would not be appropriate.
Id. It considered counsel’s arguments that Semelsberger “simply sent letters”
that did not threaten Hendrickson, and that he “be afforded some treatment
in dealing with . . . the end of this relationship.” Id. at 21-22. As noted, the
trial court sentenced Semelsberger to undergo a mental health evaluation and
follow all recommendations. The record reveals that the trial court properly
and adequately considered the factors included in 42 Pa.C.S. § 9721(b).
Accordingly, even if Semelsberger had preserved his discretionary aspects of
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sentencing claim, we would conclude that the trial court did not abuse its
discretion.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2021
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2 We also observe that a flat sentence of incarceration is permissible for
indirect criminal contempt sanctions under the PFA, and therefore
Semelsberger’s sentence is legal. See Commonwealth v. Marks, ___ A.3d
___, 2021 Pa.Super. 237 (filed December 7, 2021).
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