Com. v. Kesselring, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
RONALD ANDREW KESSELRING, :
: No. 1205 MDA 2017
Appellant
Appeal from the Judgment of Sentence June 13, 2017
in the Court of Common Pleas of Adams County,
Criminal Division at No(s): CP-01-CR-0001051-2016
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 21, 2018
Ronald Andrew Kesselring (“Kesselring”) appeals from the judgment of
sentence entered following his conviction of two counts of hindering
apprehension or prosecution, and one count of obstructing administration of
law or other governmental function (“Obstruction”).1 Kesselring also has filed
with this Court a “Petition to Proceed Pro Se, Amend Appellant’s Brief and for
an Extension of Time” (“Petition”). We deny Kesselring’s Petition, and affirm
____________________________________________
1 See 18 Pa.C.S.A. §§ 5105(a)(1), (5); 5101.
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the judgment of sentence.2
The trial court aptly summarized the factual history underlying the
instant appeal as follows:
On August 18, 2016, at approximately 4:30-4:45 p.m., Officer
Gregory Morehead [(“Officer Morehead”),] of the Reading
Township Police Department[,FN1] and Sheriff’s Deputies
[Norman] McNeal [(“Deputy McNeal”)] and [Timothy] Beall
[(“Deputy Beall”),FN2] went to Café’s Motorcycle Shop
[(“Café’s”),FN3] located at 2630 Hunterstown/Hampton Road in
Reading Township, Adams County[,] to serve a domestic relations
bench warrant on Nathan Brough [(“Brough”)], an employee at
the motorcycle shop. As law enforcement approached and turned
into Café’s parking lot, they observed two males, [Kesselring] and
Brough, standing in the parking lot. Deputies Beall and McNeal
testified [that Kesselring] and Brough made eye contact with them
and then quickly went inside the building and closed and locked
the door. [Deputy McNeal testified that he tried opening the door,
but found that it was locked.]
FN1Officer Morehead was in full uniform and a marked police
vehicle.
FN2 Deputies McNeal and Beall were in uniform and riding together
in an unmarked vehicle.
____________________________________________
2 Kesselring’s counsel filed an advocate’s appellate brief for Kesselring on
November 13, 2017. On November 29, 2017, Kesselring filed his Petition
requesting permission to proceed pro se, and for an extension of time to
amend his appellate brief to include additional issues. Petition, 11/29/17, at
2. Our Supreme Court has held that there is no right to hybrid representation.
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993). “Moreover, once
the brief has been filed, any right to insist upon self-representation has
expired.” Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011).
Because Kesselring filed his Petition after his counsel had filed an appellate
brief on Kesselring’s behalf, we cannot grant Kesselring the relief he seeks.
We therefore deny Kesselring’s Petition.
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FN3 [Kesselring] owns Café’s [].
Deputy McNeal testified [that] he knocked on the door,
announced his presence and that he had a warrant for Brough.
While this was occurring, Officer Morehead and Deputy Beall went
to the side and then the back of the building. [Kesselring]
answered approximately two minutes after Deputy McNeal began
knocking on the door. Deputy McNeal testified [that] he told
[Kesselring] they had a warrant for Brough and needed to talk to
Brough. [Kesselring] told Deputy McNeal that Brough “wasn’t
here, he left already, that his vehicle was broken and he got a
ride.”
Deputy McNeal entered the building and began searching for
Brough. He testified that during the search[, Kesselring] was loud
and yelling. At some point[,] Officer Morehead entered the
building through an open back door and started searching for
Brough. Deputy Beall remained in the back of the building in case
Brough tried to leave. [Deputy Beall stated that he stayed in the
back because he “wanted to be at a vantage point where he could
see if [] Brough fled from the building.”] Officer Morehead
testified [that] approximately ten minutes into his search of the
building[,] he heard “a pretty heated conversation between
Deputy McNeal and [] Kesselring on the first floor area. Officer
Morehead took [Kesselring] outside to “diffuse the situation.”
Officer Morehead eventually rejoined Deputy McNeal back inside
the building, and continued searching for Brough. After
approximately 30-40 minutes of searching, Deputy McNeal found
Brough hiding in the insulation and duct work in a small “crawl
space” area on the second floor. Brough was apprehended and
arrested.
Trial Court Opinion, 8/29/17, at 1-3 (citations to record and some footnotes
omitted).
A jury subsequently convicted Kesselring of the above-described
charges, after which the trial court revoked Kesselring’s bail in an unrelated
probation revocation case. Following a pre-sentence investigation, the trial
court sentenced Kesselring to an aggregate prison term of 10-24 months. The
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trial court imposed the sentence consecutive to the sentence imposed in
Kesselring’s unrelated probation revocation case. Thereafter, Kesselring filed
the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
Kesselring presents the following claims for our review:
1. Did the Commonwealth fail to present sufficient evidence of
a “crime or violation of the terms of probation, parole,
intermediate punishment or Accelerated Rehabilitative
Disposition,” as required by 18 Pa.C.S.A. [§] 5105, where
the only evidence presented at trial was testimony that
Sheriffs had a “domestic relations” warrant for another
individual, and failed to introduce said warrant?
2. Did the Commonwealth fail to present sufficient evidence of
an affirmative act to hinder the execution of a warrant, as
required by 18 Pa.C.S.A. § 5101, where [Kesselring] failed
to open the door in a timely fashion?
NOTE: …[T]hough [Kesselring] challenges the sufficiency of
the evidence for two convictions under Section 5105, it will be
addressed in one Question, as it involves the same factual and
legal concerns.
Brief for Appellant at 4.
In his first claim, Kesselring challenges the sufficiency of the evidence
underlying his conviction of hindering apprehension or prosecution. Id. at 11.
Kesselring argues that the Commonwealth’s “[m]ere reference to an alleged
‘domestic relations warrant,’ without allegation of a crime, is not sufficient to
establish that [Kesselring] hindered apprehension of someone for a ‘crime or
violation of the terms of probation, parole, intermediate punishment or
Accelerated Rehabilitative Disposition.’” Id. (quoting 18 Pa.C.S.A. § 5105).
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Specifically, Kesselring argues that the Commonwealth failed to introduce the
actual warrant into evidence, and there was no allegation that Brough had
committed a crime. Brief for Appellant at 11. Relying on this Court’s holding
in Commonwealth v. Johnson, 100 A.3d 207 (Pa. Super. 2014), Kesselring
contends that, although the officers stated that they were at his residence to
serve “an active domestic relations warrant on another individual[,]” they did
not testify as to the underlying basis for the warrant. Brief for Appellant at
13-14. Kesselring takes issue with the trial court’s conclusion that the mere
existence of the domestic relations warrant provided sufficient evidence of a
crime by Brough. Id. at 14. Kesselring proffers that a domestic relations
bench warrant is not necessarily premised on probable cause of criminal
contempt, and can be issued for non-criminal purposes. Id. According to
Kesselring, “[n]othing in the requirements for issuance of a domestic relations
warrant requires a court to find that a person willfully fails or refuses to
appear.” Id. at 15 (internal quotation marks omitted). Kesselring
acknowledges that the only evidence regarding the nature of the warrant was
provided by Brough, the subject of the warrant. Id. at 16. Kesselring argues
that Brough’s testimony failed to establish that Brough had consciously
disregarded a court order supporting criminal contempt. Id. at 17.
In reviewing a challenge to the sufficiency of the evidence, we apply the
following standard and scope of review:
There is sufficient evidence to sustain a conviction when the
evidence admitted at trial, and all reasonable inferences drawn
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therefrom, viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to enable the
fact-finder to conclude that the Commonwealth established all of
the elements of the offense beyond a reasonable doubt. The
Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Further, we note that the entire trial
record is evaluated and all evidence received against the
defendant is considered, being cognizant that the trier of fact is
free to believe all, part, or none of the evidence.
Commonwealth v. Morales, 91 A.3d 80, 87-88 (Pa. 2014).
The Crimes Code defines the crime of hindering apprehension or
prosecution as follows:
(a) Offense defined. — A person commits an offense if, with
intent to hinder the apprehension, prosecution, conviction or
punishment of another for crime or violation of the terms of
probation, parole, intermediate punishment or Accelerated
Rehabilitative Disposition, he:
(1) harbors or conceals the other;
…
or
(5) provides false information to a law enforcement officer.
18 Pa.C.S.A. § 5105(a)(1), (5).
In Johnson, upon which Kesselring relies, twenty FBI agents and United
States Marshalls went to the apartment of the defendant to execute an arrest
warrant for Rodney Thompson (“Thompson”). Johnson, 100 A.3d at 208.
Law enforcement officers knocked on the defendant’s door, announced that
they were police officers, and said that they had an arrest warrant for
Thompson. Id. Initially, no one came to the door. Id. However, after law
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enforcement knocked again, the defendant inquired as to their identity. Id.
Upon the officers identifying themselves as law enforcement, the defendant
asked them to wait while she dressed. Id. About five minutes later, officers
heard someone running within the apartment, after which they attempted to
force open the apartment door. Id. As they did so, the defendant opened
the door, but then denied that anyone was in the apartment. Id. The
defendant further denied knowing Thompson, when shown his picture. Id.
Officers then observed an open window, and Thompson running outside the
window, on the roof. Id. The defendant was arrested and ultimately
convicted of hindering apprehension or prosecution, pursuant to 18 Pa.C.S.A.
§ 5105(a)(1). Johnson, 100 A.3d at 208.
On appeal, the defendant challenged the sufficiency of the evidence,
arguing that the Commonwealth had failed to produce the arrest warrant for
Thompson at her trial. Id. at 209. The Commonwealth countered, arguing
that evidence of the underlying crime, which prompted the official action, is
not required to sustain the conviction. Id. Ultimately, this Court concluded
that the evidence was not sufficient to sustain the defendant’s convictions.
Id. at 214. In so holding, this Court explained that
[t]he Commonwealth offered no evidence as to why Thompson
was wanted or whether it was in connection with a crime, or
violation of the terms of probation, parole, intermediate
punishment or Accelerated Rehabilitative Disposition. It did not
place the warrant into evidence and no witness testified
regarding Thompson’s purported crime. In essence, although
the Commonwealth offered evidence from which one might infer
that [the defendant] intended to hinder the apprehension of
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Thompson, it did not offer proof that Thompson was being sought
for commission of a “crime or violation of the terms of probation,
parole, intermediate punishment or Accelerated Rehabilitative
Disposition[.]” 18 Pa.C.S.[A.] § 5105(a)(1). The fact that the
Commonwealth offered evidence that police officers apprised [the
defendant] that they had a federal warrant, even an arrest
warrant, was not enough to satisfy this element. Nor do we find
persuasive the Commonwealth’s argument that Thompson’s
threat to kill [the defendant] constituted circumstantial evidence
that he was an outstanding felon. In short, the Commonwealth
failed to prove an element of the offense: that Thompson was
being sought for commission of a crime or any of the statute’s
other enumerated violations.…
Johnson, 100 A.3d at 214 (emphasis added).
By contrast, in the instant case, Officer McNeal testified that on August
18, 2016, he was assigned to serve a Domestic Relations bench warrant for
Brough, at 2630 Hunterstown/Hampton Road in Reading Township,
Pennsylvania. N.T., 4/4/17, at 38. Officer McNeal stated that, upon arriving
at Café’s, he saw Kesselring standing with Brough. Id. at 41. According to
Officer McNeal, Kesselring and Brough “saw us, they turned around, the
subject [Brough] went in first, [] Kesselring followed and closed the door.”
Id. After exiting his vehicle, Officer McNeal proceeded to the door used by
Kesselring and Brough, knocked on the door and stated, “Adams County
Sheriff’s Office. I need you to come to the door and open it.” Id. at 42. No
one responded at that time. Id. Officer McNeal indicated that he continued
to knock on the door and demand entry. Id. at 43. Within about two minutes,
Kesselring responded to the door. Id. at 44. Officer McNeal testified as
follows, regarding what next transpired:
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I explained to [] Kesselring [that] we had a warrant for the
subject and we needed to speak with him. He[,] in turn[,]
informed us [Brough] wasn’t here, he left already, that his vehicle
was broken and he got a ride. I explained to [] Kesselring we just
observed him, along with the subject we were looking for, just
enter the business and we needed to speak with him. He made
the statement to the effect [that] we close at five. And I apologize
for my language. I don’t have time for this shit. He then—I
explained to him we needed to come in and search the place. He
said I don’t have time for this, I have an appointment. I told him
he didn’t have an option in the matter[,] we were coming in and I
made entry.
…
I made entry. I believe Officer Morehead came in shortly behind
me. Kesselring’s mannerism was loud. In my opinion[,] he was
trying to hinder my search by announcing where we were to help
the subject know where we were. He was almost like borderline
belligerent.
…
As I was looking at the common spaces where the subject could
hide[,] [] Kesselring was behind me yelling. He was yelling loud
enough he could be heard throughout the building….
Id. at 44-45 (emphasis added). Officer McNeal indicated that he eventually
found Brough hiding inside an opening where the insulation and duct work for
the building were located. Id. at 49-50. Officer McNeal testified that he had
“a warrant for a person[,]” and described the warrant as a “Domestic Relations
warrant.” Id. at 54, 55.
Officer Beall described Domestic Relations bench warrants as follows:
Domestic Relations bench warrants come … through Domestic
Relations cases. They originate as a result of a [d]efendant either
failing to appear for a court appearance or being found in
contempt of court and as a result[,] a bench warrant being issued
for their arrest.
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…
With domestic relations bench warrants specifically[,] if it’s a court
day[,] the [d]efendant would be brought in for a court hearing. If
it’s a non-court day[,] the subject would be transported to the
local prison[,] and then arrangements would be made for the
[d]efendant to be brought in on the next available court day.
Id. at 59-60.
In his testimony, Brough confirmed that a Domestic Relations bench
warrant had been issued against him. Id. at 94. When asked whether “that
means that you didn’t show up for [a] Domestic Relations [c]ourt
appearance[,]” Brough responded, “Right.” Id.
Thus, the testimony established that a Domestic Relations warrant had
been issued for Brough, for his failure to appear for a hearing. The Domestic
Relations Code provides that
[a] person who willfully fails or refuses to appear in response to a
duly served order or other process under this chapter may, as
prescribed by general rule, be adjudged in contempt. Contempt
shall be punishable by any one or more of the following:
(1) Imprisonment for a period not to exceed six months.
(2) A fine not to exceed $ 500.
(3) Probation for a period not to exceed six months.
23 Pa.C.S.A. § 4344. As this Court has explained,
contempt can be criminal or civil in nature, and depends on
whether the core purpose of the sanction imposed is to vindicate
the authority of the court, in which case the contempt is criminal,
or whether the contempt is to aid the beneficiary of the order
being defied, in which case it is civil.
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Commonwealth v. Bowden, 838 A.2d 740, 760 (Pa. 2003). “[T]he
characteristic that distinguishes civil from criminal contempt is the ability of
the contemnor to purge himself of civil contempt by complying with the court’s
directive.” Orfield v. Weindel, 52 A.3d 275, 281 (Pa. Super. 2012) (citation
omitted).
Contrary to Kesselring’s claim, the Commonwealth presented sufficient
evidence to establish that a Domestic Relations warrant was issued for
Brough’s failure to appear before the Domestic Relations court, which,
pursuant to section 4344, is subject to criminal contempt penalties. See
Bowden, 838 A.2d at 760. We therefore conclude that the evidence is
sufficient to establish the criminal conduct underlying the Domestic Relations
bench warrant. Consequently, we cannot grant Kesselring relief on this claim.
Kesselring next claims that the evidence was insufficient to sustain his
conviction of obstruction. Brief for Appellant at 18. Kesselring argues that
the Commonwealth failed to present evidence that he had intentionally
hindered police officers from executing a warrant “through physical
interference, where [Kesselring] closed the door prior to any notice of a
warrant, and where he merely delayed opening the door through inaction.”
Id. (emphasis omitted). Kesselring acknowledges that in Johnson, this Court
recognized an affirmative duty for individuals to consent to such searches
“under pain of criminal penalty.” Id. However, Kesselring argues that 18
Pa.C.S.A. § 5101 requires “affirmative interference with governmental
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functions.” Brief for Appellant at 19 (quoting 18 Pa.C.S.A. § 5101).
Kesselring argues that the Johnson court criminalized a peaceful means of
refusing consent to search, and, accordingly, is unconstitutional in its
application. Brief for Appellant at 21.
Pursuant to the Crimes Code,
[a] person commits a misdemeanor of the second degree if he
intentionally obstructs, impairs or perverts the administration of
law or other governmental function by force, violence, physical
interference or obstacle, breach of official duty, or any other
unlawful act, except that this section does not apply to flight by a
person charged with crime, refusal to submit to arrest, failure to
perform a legal duty other than an official duty, or any other
means of avoiding compliance with law without affirmative
interference with governmental functions.
18 Pa.C.S.A. § 5101.
Initially, we point out that a three-judge panel of this Court cannot
overrule another three-judge panel of the Superior Court. Commonwealth
v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013). On this basis, we cannot grant
Kesselring relief on his claim.
In addition, as explained by this Court in Johnson, “[t]he interference
need not involve physical contact with the government official as he performs
his duties.” Johnson, 100 A.3d at 215. For example, in Commonwealth v.
Mastrangelo, 414 A.2d 54 (Pa. 1993), our Supreme Court upheld a
defendant’s conviction of violating section 5101, where the defendant had
verbally abused a parking enforcement officer upon receiving a parking ticket,
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which deterred the officer from subsequently performing his duties. Id. at
265.
As set forth above, the evidence established that once Brough and
Kesselring had entered the building, Kesselring closed and locked the door,
and then delayed responding to Officer McNeal’s knock and instructions to
open the door. N.T., 4/4/17, at 44. Kesselring wrongfully told Officer McNeal
that Brough had left Café’s, and hindered Officer McNeal’s search for Brough
by belligerently yelling and announcing Officer McNeal’s location throughout
the search. Id. at 44-45. Thus, the evidence was sufficient to sustain
Kesselring’s conviction of obstruction, and Kesselring is not entitled to relief
on his claim.
Petition denied. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/21/2018
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