Britton, K. v. Maksimov, A. ( 2017 )

J-S63044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATIE BRITTON IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ALEKSEY N. MAKSIMOV
Appellant No. 2238 EDA 2015
Appeal from the Judgment of Sentence Entered May 27, 2015
in the Court of Common Pleas of Bucks County Civil Division
at No(s): 2012-60700-A
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 23, 2017
Appellant, Aleksey N. Maksimov, appeals from the judgment of
sentence of six months’ imprisonment entered in the Bucks County Court of
Common Pleas for indirect criminal contempt.1 Appellant argues that there
was insufficient evidence of contempt, and that the trial court abused its
discretion by (1) denying him discovery under the Rules of Criminal
Procedure, (2) refusing to permit him to represent himself pro se during
trial, and (3) imposing an excessive sentence. We affirm.
The trial court set forth the factual and procedural history of this case
as follows:
*
Former Justice specially assigned to the Superior Court.
1
23 Pa.C.S. § 6114.
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[Appellant] and Appellee Katie Britton were close friends
since childhood, described by Ms. Britton as “best friends.”
The troubling events that eventually transpired between
the parties took a turn for the worse after Appellee
terminated their intimate relationship. After the
termination of the parties’ relationship, Appellant appeared
at Appellee’s residence unannounced and was spotted
peering through Appellee’s windows. After Appellant failed
to leave when told to do so, Appellee contacted the police.
Appellant was warned to stay away from Appellee’s
residence by the police but Appellant returned shortly after
the police left to do burnouts back and forth in front of
Appellee’s property.
A few days later, Appellant returned to Appellee’s
residence. When commanded to leave, Appellant
physically forced his way into Appellee’s residence where
an argument ensued between the parties. Appellant
deprived Appellee of her cell phone when she threatened
to contact the police. When Appellant left, Appellee
resorted to contacting her friend through Facebook and
had the friend report the incident to the police on her
behalf. Thereafter, Appellant was arrested on February
24, 2012.
After Appellant was released on bail on February 28,
201[2], Appellant apologized to Appellee for his behavior
and the two reconciled as friends. However, afterwards,
Appellant had an argument with Appellee in front of
Appellee’s father’s residence. When Appellee chose to
leave, Appellant followed Appellee down the road in his car
while arguing with Appellee the entire time. The parties
drew attention from other drivers and when one stopped to
speak with Appellee, Appellant became aggravated and
subsequently left his car and chased Appellee on foot,
tackling Appellee several times and forcefully restrained
her while she was on the ground. Appellant threate[ne]d
that he would “fuck up” Appellee’s life if she contacted the
police. Only with the help of a neighbor that heard the
commotion did Appellant temporarily leave.
Appellee proceeded to walk home while on the phone
with a friend but was again ambushed by Appellant. This
time, Appellant forcefully deprived Appellee of both her cell
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phone and her keys. Appellee’s friend contacted the police
and Appellee was able to dial 911 before Appellant
cancelled the call. Appellant did not return the keys until
after hearing police sirens and when another one of
Appellee’s friend chanced by in his car and stopped to
intervene. Appellee was escorted home by the friend
where the police were waiting.
Later, when Appellee was at the police station filing a
police incident report of the events that was just
described, she noticed that Appellant was driving by the
police station. Appellee notified the police and Appellant
was apprehended near the police station on March 20,
2012. As a result of the above behavior and other
behavior too extensive to be summarized herein, the
[c]ourt entered a PFA [Protection From Abuse] Order
against Appellant on April 4, 2012, prohibiting Appellant
from having “ANY CONTACT” with the Appellee [for three
years], “either directly or indirectly” . . . “at any location.”
Further[,] the original Order stated in clear, unequivocal
terms that Appellant “shall not contact Plaintiff” (Appellee)
either directly or indirectly . . . by telephone, or by any
other means, including “through third persons.”2
In addition, testimony and documentation at the
hearing in the form of docket entries, etc.in this matter
indicated that Appellant[] had been convicted in [c]riminal
[c]ourt of at least two matters involving the Appellee as
the same complainant/victim. Appellant was convicted
and received a sentence of one year[’s] probation for
[h]arassment under 18 Pa.C.S. § 2709(a)(1) on July 13,
2012, involving Appellee as the victim/complainant, and
Appellant was ordered not to contact Appellee. Appellant
was then convicted on May 29, 2013 of [s]talking under 18
Pa.C.S. § 2709.1(a)(1), and [i]ntimidation of [w]itnesses
or [v]ictims under 18 Pa.C.S. § 4952(a)(2) involving
Appellee as the victim/complainant, and was ordered to
serve a sentence of 11.5 months to 23 months at the
2
A notice provision in the order provided: “Violation of this order may result
in your arrest on the charge of indirect criminal contempt which is
punishable by a fine of up to $1000 and/or a jail sentence of up to six
months. 23 Pa.C.S. § 6114.”
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Bucks County Correctional Facility with a concurrent seven
year term of probation.
Conditions of Appellant’s probation included no contact
with the victim. Shortly thereafter, Appellant violated his
concurrent term of probation by contacting Appellee from
the Bucks County Correctional Facility and was
subsequently sentenced on August 26, 2013 for a violation
of probation to a term of not less than three years nor
more than seven years at a State Correctional Facility. As
indicated in the Petition for Contempt Addendum, the
violation of probation included Appellant making calls to
Appellee from the Bucks County Correctional Facility using
his inmate account and other inmates’ accounts. In
addition, Appellee received calls from Appellant through
countless cell phones and letters addressed to Appellee by
Appellant using pseudonyms. In these phone calls and
letters, Appellant sometimes threatened Appellee with
physical harm and violence if she failed to withdraw the
criminal charges pending against Appellant. Appellant also
threatened to disclose intimate pictures of Appellee in
attempts to coerce Appellee into dropping the criminal
charges. At the Violation of Parole/Probation Hearing, the
[c]ourt reaffirmed that Appellant was to have no contact
with Appellee.
Since the Violation of Parole/Probation Hearing,
Appellee enjoyed a period of respite from direct contact
from Appellant. However, while it was not the subject of
this matter, it appears that Appellant had contacted
Appellee’s mother from SCI-Houtzdale, which perhaps
could have been alleged as “indirect contact” but was not
raised in the case other than through testimony.
Despite the 2012 PFA Order[,] and despite being
warned again to have no contact with Appellee at the
Violation of Parole/Probation Hearing, Appellant resumed
contact with Appellee on May 29, 2014 by sending
Appellee a letter addressed from the state prison in which
he was incarcerated. Appellee notified the police on the
same day she received the letter in the mail and
subsequently petitioned the [c]ourt for the current criminal
contempt hearing against Appellant.
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Trial Ct. Op., 1/16/16, at 3-6 (citations omitted).
On March 19, 2015, Appellee filed a detailed contempt petition alleging
that Appellant violated the 2012 PFA Order by mailing her the letter on May
29, 2014. On the same date, the trial court ordered a contempt hearing.
The sheriff served Appellant with the petition on March 24, 2015.
On April 7, 2015, Appellant filed a pro se motion seeking discovery
under Pa.R.Crim.P. 573. His motion requested, inter alia, Appellee’s cell
phone records, records of her Facebook messages, and her emails and text
messages. Disc. Mot., 4/7/15, at ¶¶ 11-13.
On May 27, 2015, the trial court convened a hearing to determine
whether to hold Appellant in indirect criminal contempt. N.T., 5/25/15, at 3.
The Public Defender appeared on behalf of Appellant, and the
Commonwealth appeared on behalf of Appellee. Id. at 1, 3. After Appellee
began testifying on direct examination, Appellant stated: “As you recall, I
filed for discovery. Where’s my discovery?” Id. at 17. The trial court
denied Appellant’s request for discovery, ruling that the Rules of Criminal
Procedure did not authorize discovery during a domestic relations
proceeding. Id. at 18-19. Appellant responded that he was firing the Public
Defender, whom he called a “public pretender,” and demanded the
appointment of other court-appointed counsel. Id. at 19. The trial court
denied Appellant’s request. Id. at 23-25. Appellant then moved to proceed
pro se, but the trial court denied this motion as well. Id. at 26-27.
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The trial court described the remainder of the contempt hearing as
follows:
Appellant was continually argumentative and attempted
repeatedly to disrupt the testimony of the witnesses or the
[c]ourt’s instructions and rulings. More disturbing were his
outbursts directed towards Appellee and Detective Peter
Stark. Despite being in a criminal contempt hearing for
violating an existing no-contact/no harassment PFA Order
against Appellee, Appellant—throughout the hearing—
shouted on approximately eighteen occasions remarks in a
foreign language to the Appellee. It was later determined
by the [c]ourt that he was most often shouting, among
other things: “I love you” to Appellee. On cross-
examination of Appellee, Appellant repeatedly attempted
to ask highly inappropriate questions, such as, on at least
four separate occasions[,] he asked the Appellee if she
loved him.
At one point, later in the proceeding, Appellant also
inappropriately requested to have a private conference
with Appellee in a separate room despite the grave nature
of the PFA contempt allegations against him. The [c]ourt
has strong suspicion to believe, based on Appellant’s
perverse behavior and demeanor during the hearing, that
it was his intent and motive all along to pervert the court
system into another method for him to seek attention from
Appellee and to be in the same room with her, even if just
for the length of the hearing.
Also, the [c]ourt notes that at the conclusion of
Detective Stark’s testimony, Appellant made an offhand
comment to Detective Stark suggesting that Appellant had
engaged in intimate relations with Detective Stark’s wife.
What was perhaps most startling was the fact that
Appellant referenced Detective Stark’s wife by her first
name.
Furthermore, the [c]ourt was less than impressed with
Appellant’s antics at the conclusion of the hearing[,]
wherein he feigned a heart attack or some medical
emergency and had to be carried out by court officers
when he refused to leave the courtroom as directed.
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Trial Ct. Op. at 7-8 (record citations omitted). The trial court found
Appellant guilty of indirect criminal contempt and sentenced him to six
months’ imprisonment, the maximum penalty for indirect criminal contempt
under 23 Pa.C.S. § 6114(b)(1). Id. at 2-3.
Appellant did not file post-sentence motions. Nor did he appeal within
thirty days after imposition of sentence. On July 1, 2015, through court-
appointed counsel, Appellant filed an unopposed petition for leave to appeal
nunc pro tunc. On July 6, 2015, the trial court granted Appellant leave to
appeal nunc pro tunc within the next thirty days. On July 21, 2015,
Appellant appealed to this Court. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal, which we have re-
ordered for purposes of disposition:
1. Did the [t]rial [c]ourt err in that there was not enough
evidence to prove beyond a reasonable doubt that
Appellant was in contempt[?]
2. Did the [t]rial [c]ourt err in finding . . . Appellant in
contempt for a letter written on or about May 29, 2014[?]
3. Did the [t]rial [c]ourt fail to understand the nature of
the proceedings and to afford Appellant his right to
criminal discovery[?]
4. Were Appellant’s rights violated when the [t]rial [c]ourt
refused to allow him to proceed pro se[?]
5. Did the [t]rial [c]ourt violate Appellant’s constitutional
rights by sentencing him [to] six months consecutive to his
current sentence[?]
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6. Did the [t]rial [c]ourt err in sentencing Appellant to a
consecutive six month sentence[,] when under 23 Pa.C.S.
§ 6114.1(c)[,] sentence shall not exceed six months[?]
Appellant’s Brief at 3.
Preliminarily, we must determine whether to quash this appeal as
untimely. Although neither Appellant nor the Commonwealth raises the
issue of the timeliness of the appeal, we may raise questions of jurisdiction
sua sponte. See Commonwealth v. Lindey, 760 A.2d 416, 418 (Pa.
Super. 2000).
Allowance of an appeal nunc pro tunc lies in the sound discretion of
the trial judge. See McKeown v. Bailey, 731 A.2d 628, 630 (Pa. Super.
1999). Generally, “a [t]rial [c]ourt may grant an appeal nunc pro tunc when
a delay in filing is caused by extraordinary circumstances involving fraud or
some breakdown in the court’s operations through a default of its officers.”
Id. (citation and quotation marks omitted). At the time of sentencing, the
court is required to inform the defendant “of the right to file post-sentence
motions and to appeal [and] the time within which the defendant must
exercise those rights[.]” Pa.R.Crim.P. 704(C)(3)(a). Failure to apprise the
defendant of these rights constitutes a breakdown in the operations of the
court which entitles the defendant to appeal nunc pro tunc.
Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004). Here,
the trial court failed to inform Appellant of these rights on the record or in its
judgment of sentence. Therefore, we will not fault Appellant for failing to
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appeal within thirty days after imposition of sentence. We decline to quash
this appeal.
In his first argument on appeal, Appellant challenges the sufficiency of
the evidence underlying his conviction for indirect criminal contempt.
Appellant does not deny that he contacted Appellee by sending her a letter
on May 29, 2014. Instead, Appellant claims that Appellee deliberately
delayed filing her contempt petition until March 19, 2015, ten months after
his letter, and as Appellant neared his parole date on his prior sentences.
Appellant’s Brief at 16. Appellant complains that the purpose of this delay
was to induce the trial court, who “disliked Appellant,” to invent a pretext for
keeping him in jail past his parole date. Id. at 13, 16. Appellant insists that
Appellee’s actions “were vindictive in nature and not for [her] protection . . .
or [her petition] would have been filed sooner.” Id. at 13. We disagree.
When examining a challenge to the sufficiency of the evidence, our
standard of review is well settled:
The standard we apply . . . 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 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
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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 finder 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. Brumbaugh, 932 A.2d 108, 109-10 (Pa. Super. 2007)
(citation omitted).
The Protection from Abuse Act, 23 Pa.C.S. §§ 6101-6122, empowers
courts to hold a defendant who violates a PFA order in “indirect criminal
contempt and punish the defendant in accordance with law.” 23 Pa.C.S. §
6114(a). “A charge of indirect criminal contempt consists of a claim that a
violation of an order or decree of court occurred outside the presence of
the court. Where a PFA order is involved, an indirect criminal contempt
charge is designed to seek punishment for a violation of the protective
order.” Commonwealth v. Baker, 722 A.2d 718, 720 (Pa. Super. 1999)
(en banc) (citations omitted) (emphasis added).
The elements of criminal contempt are:
(1) the order must be definite, clear, specific and leave no
doubt or uncertainty in the mind of the person to whom it
was addressed of the conduct prohibited, (2) the
contemnor must have had notice of the specific order or
decree, (3) the act constituting the violation must have
been volitional, and (4) the contemnor must have acted
with wrongful intent.
Id. at 721 (citation omitted). “As with any other criminal proceeding, [the
defendant] may be found guilty of the charged offense only if the
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Commonwealth proves every element beyond a reasonable doubt.”
Commonwealth v. Nelson, 690 A.2d 728, 732 (Pa. Super. 1997) (citation
omitted).
The trial court explained that the evidence satisfies every element of
indirect criminal contempt:
Initially, the [c]ourt states that it found the testimony
of the Appellee to be fully credible. With regard to the
enumerated factors that require our review: First, the
[c]ourt found that the 2012 PFA Order that Appellant was
charged with violating was definite, clear, specific, and left
no doubt or uncertainty. In the Order, Appellant was
specifically prohibited from having “ANY CONTACT” with
Appellee, either directly or indirectly, at any and all
locations. The Order further specified that Appellant shall
not contact Appellee, “either directly or indirectly, by
telephone, or by any other means, including through third
persons.” The Order could not have been clearer in its
direction to Appellant to cease all contacts with Appellee,
including contacts via mail. Yet, Appellant sent a letter
while incarcerated that was addressed to and received by
Appellee on May 29, 2014.
Second, the [c]ourt found beyond a reasonable doubt
that Appellant had notice of the 2012 PFA Order. The
Order itself was entered at a hearing in open [c]ourt and
was done by agreement. The Appellant was present
throughout the proceeding, was represented by counsel[,]
and the Agreement was signed by Appellant. Accordingly,
there is no dispute that Appellant knew of the Order.
Third, the [c]ourt found beyond a reasonable doubt that
Appellant’s act of sending the letter to Appellee was
volitional. Appellant’s actions of writing out a letter,
addressing and mailing the envelope, and seeing to it that
it was mailed, were not coerced or accidental. Appellant
took deliberate actions in sending Appellee the letter.
Furthermore, the [c]ourt found that Appellant was the
sender of the letter beyond a reasonable doubt. Again, the
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[c]ourt found Appellee and Detective Stark’s testimonies to
be credible. The [c]ourt disbelieved Appellant’s
halfhearted contention, as suggested in the questioning
that he was not the person who sent the letter received by
Appellee. At the hearing, the [c]ourt heard evidence
relating to Appellee’s first-hand knowledge and ability to
recognize the letter as being sent by Appellant. Appellee
indicated she had received somewhere in the
neighborhood of thirty letters from Appellant previously.
Appellee testified that the letter was addressed to her from
Appellant with a return address of the prison where
Appellant was serving time. Appellee also testified that
she knew the letter to be from Appellant because the
content of the letter contained intimate details only
Appellant would know.
The [c]ourt disbelieved Appellant’s argument that since
Appellee did not open the letter herself, the letter must
have been tampered with by the police. At the hearing,
testimony were elicited from Appellee and Detective Stark
as to who exactly opened the letter. It turns out [that]
Appellee had immediately turned the letter over to the
police before even opening the letter. Appellee was aware
of the contents of the letter only after Detective Stark had
opened the letter and sent an electronic scanned copy of
the letter to Appellee.
In addition, when Appellant was made aware of this
event, he voiced his objections and demanded to know
whether the envelope containing the letter also contained
a card. While Appellant and Detective Stark have no
recollection of any card being included in the letter and the
fact that the inclusion of any card was irrelevant to a
finding of contempt, Appellant in essence tacitly admitted
that he sent the letter. Appellant would only be aware of
the contents of the letter and potential inclusion of a card
if he had prior knowledge that the letter was sent.
As for the fourth and final factor, the [c]ourt found that
Appellant acted with wrongful intent. Counsel for
Appellant elicited from Appellee at the hearing that the
content of the letter sent included an apology by Appellant
for his past behavior. While the [c]ourt is aware of the
supposed general apologetic contents of the letter, it is not
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persuaded that the letter was not made without wrongful
intent. The letter also indicated a possible plan for
Appellant to join a foreign army (apparently a past theme
of Appellant) and an invitation for Appellee to live abroad
with Appellant/Defendant upon his release. Again, ANY
contact is and was a direct violation of the PFA Order.
Here, Appellant while imprisoned for past abuse and
harassment of Appellee, including having previously
unlawfully contacted the Appellee from a prison, sent
Appellee an unwelcome letter, again from prison, in direct
violation of the conditions of his sentence and the PFA
Order. Although the letter may initially seem benign, it
carries with it a more sinister intent. According to
Appellee’s documentation and testimony at the hearing,
Appellant has a history of constant abuse and intimidation
that would be interjected with apology. The abuse and
harassment would essentially cycle between intimidation
and apology. However, after each apology, Appellant
would soon revert back to his abusive and harassing
behavior including making threats against Appellee if she
did not drop criminal charges against him.
The fact that Appellant’s letter contained, in part, an
apology for his past behavior does not sway the [c]ourt
from concluding that the main reason for the letter was an
attempt to reintroduce himself into Appellee’s life once
again. When accompanied by a review of his past
behavior and his unusual and inappropriate conduct at the
hearing, the [c]ourt re-states its suspicion that what
Appellant wanted all along was a chance to see Appellee in
[c]ourt again, to express his feelings again, and to
intimidate her again. Accordingly, the [c]ourt finds
Appellant’s apology in the letter disingenuous, and in light
of the facts and circumstances in this case as developed in
the testimony and documentation presented at the
hearing, the [c]ourt’s finding of criminal contempt was
proper.
Trial Ct. Op. at 20-23 (record citations omitted). We agree with the trial
court’s excellent analysis and hold that the evidence is sufficient to sustain
Appellant’s conviction for indirect criminal contempt. By focusing on
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Appellee’s ten-month delay in filing the contempt petition, Appellant
attempts to divert our attention from his blatant violation of the trial court’s
order prohibiting any contact with Appellee. In addition, we know of no legal
authority precluding Appellee from filing a PFA petition ten months after
receiving Appellant’s letter. For these reasons, Appellant’s first argument
fails.
In his second argument on appeal, Appellant claims that the trial court
erred in finding Appellant in contempt for a letter written on or about May
29, 2014. Once again, Appellant insists that the timing of Appellee’s
contempt petition overrides his violation of the “no contact” provision in the
trial court’s order. For the reasons provided in response to Appellant’s first
argument, we find his second argument devoid of merit.
In his third issue on appeal, Appellant argues that the trial court erred
by denying his motion for discovery under Pa.R.Crim.P. 573, which governs
discovery in criminal cases. Appellant contends that the contempt
proceeding was criminal in nature because the District Attorney prosecuted
the matter instead of Appellee. Appellant’s Brief at 9. Therefore, he
concludes, the discovery provisions in the Rules of Criminal Procedure apply.
We agree with the trial court that Pa.R.Crim.P. 573 does not apply to the
present case.
This case arises under 23 Pa.C.S. § 6114, a provision within the
Domestic Relations Code. The Pennsylvania Rules of Criminal Procedure
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state that “[u]nless otherwise specifically provided, these rules shall not
apply to . . . domestic relations proceedings.” Pa.R.Crim.P. 100(a). The
comments to Pa.R.Crim.P. 573 further state that Rule 573 “is intended to
apply only to court cases[,]” Pa.R.Crim.P. 573 cmt., that is, cases “in which
one or more of the offenses charged is a misdemeanor, felony, or murder of
the first, second, or third degree.” Pa.R.Crim.P. 103.
This Court has stated that “[r]ecognizing the inherent criminal nature
of [indirect criminal] contempt, the legislature has enshrouded the
proceeding with appropriate procedural safeguards.” Cipolla v. Cipolla,
398 A.2d 1053, 1056 (Pa. Super. 1979). However, those safeguards need
not rise to the level of a criminal proceeding. See id. at 1057 (“(N)o need
exists to fit criminal contempt, a crime sui generis, into the mold of
procedures created for more commonplace offenses.” (citations and
quotation marks omitted)); see also 23 Pa.C.S. § 6114(b)(3) (“The
defendant shall not have a right to a jury trial on a charge of indirect
criminal contempt”), (d) (“Disposition of a charge of indirect criminal
contempt shall not preclude the prosecution of other criminal charges
associated with the incident giving rise to the contempt, nor shall disposition
of other criminal charges preclude prosecution of indirect criminal contempt
associated with the criminal conduct giving rise to the charges.”).
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These authorities demonstrate that Appellant has no right to obtain
discovery under Pa.R.Crim.P. 573. We further agree with the trial court’s
observation that Appellant
had [all] necessary information and documentation to be
apprised of the nature of the proceedings against him[]
and to be properly prepared to defend his case in [c]ourt.
Appellant had what all defendant in PFA contempt
proceedings have[:] a copy of the original PFA order and a
full copy of the [p]etition [a]lleging [c]ontempt of a [PFA]
[o]rder.
Trial Ct. Op. at 9.
In his fourth issue on appeal, Appellant challenges the trial court’s
refusal to allow him to represent himself pro se during the contempt
hearing. We conclude that no relief is due.
Just as a criminal defendant has a constitutional right to counsel, so
does the defendant have “a long-recognized constitutional right to dispense
with counsel and to defend himself before the court.” Commonwealth v.
Starr, 664 A.2d 1326, 1334 (Pa. 1995) (citation omitted). The right to self-
representation, however, is not absolute. See Commonwealth v. Staton,
12 A.3d 277, 282 (Pa. 2010). “A request to take on one’s own legal
representation after meaningful proceedings have begun does not trigger the
automatic constitutional right to proceed pro se. The decision instead is left
to the sound discretion of the trial court.” Commonwealth v. El, 977 A.2d
1158, 1165 (Pa. 2009) (citation omitted). “Meaningful proceedings” have
begun “when a court has begun to hear motions which have been reserved
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for time of trial; when oral arguments have commenced; or when some
other such substantive first step in the trial has begun.” Id. (citation
omitted).
When Appellant moved to proceed pro se, the trial court had already
(1) begun the hearing, (2) heard most of Appellee’s testimony on direct
examination, (3) denied Appellant’s discovery request, and (4) denied
Appellant’s request for new court-appointed counsel. Under these
circumstances, the trial court had the discretion to deny Appellant leave to
proceed pro se. See id. The trial court aptly recognized that Appellant had
no reasonable basis for proceeding pro se but was merely “do[ing] all he
could to create disruption, delay, and confusion[] and to lengthen the time
he was in the [c]ourtroom with Appellee.” Trial Ct. Op. at 15. Thus, the
trial court acted within its discretion in denying Appellant leave to represent
himself pro se.
We review Appellant’s fifth and sixth arguments together. In both
arguments, Appellant contends that the trial court abused its discretion by
sentencing him to six months’ imprisonment consecutive to his current
sentence.
Both issues are challenges to the discretionary aspects of Appellant’s
sentence. This Court has held:
Challenges to the discretionary aspects of sentencing do
not entitle an appellant to appellate review as of right.
Prior to reaching the merits of a discretionary sentencing
issue:
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[w]e 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.A. § 9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some
citations and quotation marks omitted).
Appellant failed to explain during the contempt hearing why his
sentence was excessive. He merely stated, without elaboration, that “the
law does not allow [the trial court] to make [Appellant’s sentence]
consecutive” to his current sentence. N.T., 5/25/16, at 99. Appellant also
failed to file post-sentence motions challenging the excessiveness of his
sentence. Ordinarily, this would constitute a waiver of his right to challenge
the excessiveness of his sentence on appeal. See Evans, 901 A.2d at 533-
34. In this case, however, we will excuse this omission due to the trial
court’s failure to apprise Appellant of his right to file post-sentence motions.
Nevertheless, we conclude that the trial court had ample reason for
imposing a consecutive sentence in view of Appellant’s long history of
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J-S63044-16
abusive behavior towards Appellee, his refusal to stop contacting her, and
his reprehensible conduct during the contempt hearing.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2017
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