Com. v. Pilchesky, J. ( 2020 )

J-A07007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH W. PILCHESKY :
:
Appellant : No. 1019 MDA 2019
Appeal from the Judgment of Sentence Entered January 2, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001075-2013
BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED: JUNE 8, 2020
Appellant, Joseph W. Pilchesky, appeals pro se from the judgment of
sentence entered on January 2, 2019, following his jury trial conviction for
unauthorized practice of law.1 We affirm.
The tortuous factual and procedural history of this case is as follows. In
2011, Appellant, although not licensed to practice law in Pennsylvania, offered
legal advice and drafted legal documents on behalf of three individuals: Dana
Lewis, Sheila Hartman, and Mary Chilipko. On February 27, 2013, the
Commonwealth filed a criminal complaint against Appellant, charging him with
multiple counts of unauthorized practice of law. On May 13, 2013, Appellant
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1 42 Pa.C.S.A. § 2524(a).
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waived his right to counsel via a written waiver and waived his preliminary
hearing.
From July 2013 through September 2013, Appellant submitted multiple
pro se filings,2 including a motion to disqualify the presiding judge, the
Honorable Michael J. Barrasse. As a result of Appellant’s motion, Judge
Barrasse recused himself on August 26, 2013, and on September 20, 2013,
the Honorable Vito P. Geroulo was assigned to the case.
On October 25, 2013, the Commonwealth filed a motion in limine
seeking to prevent Appellant from asserting at trial the defense of justification
by necessity. On November 19, 2013, the trial court held a hearing and
subsequently granted the Commonwealth’s motion in limine on December 17,
2013. On January 16, 2014, Appellant filed a notice of appeal, seeking review
of the trial court’s order. This Court quashed the appeal as interlocutory on
March 17, 2014. Appellant then appealed to our Supreme Court, which denied
allocatur on May 23, 2014.
After this Court quashed Appellant’s appeal, the trial court scheduled
trial for May 5, 2014. On April 30, 2014, the trial court conducted a hearing
on Appellant’s various pre-trial motions. At the hearing, Appellant requested
a lawyer. As a result, the trial court continued Appellant’s trial to
accommodate his request. Shortly thereafter, on May 5, 2014, the trial court
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2Specifically, Appellant filed two requests for discovery material pursuant to
Brady v. Maryland, 373 U.S. 83 (1963), two requests for bills of particulars,
and a motion requesting additional time to file pre-trial motions.
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entered an order denying Appellant’s pre-trial motions. Appellant filed a
motion for reconsideration, which the trial court denied. Appellant then filed
a notice of appeal to this Court seeking review of the trial court’s May 5, 2014
order denying his pre-trial motions. The Commonwealth filed an application
to quash the appeal which this Court granted.
While Appellant’s appeal was pending before this Court, he filed a civil
action against the assigned judge, Judge Geroulo. As a result, Judge Geroulo
recused himself. On October 1, 2014, the Honorable James Gibbons was
assigned to preside over the matter. The court held a hearing on October 21,
2014, during which Appellant reiterated his desire for an attorney, but also
stated that he did not have representation at that time. Ultimately, the court
appointed counsel for Appellant and scheduled trial for September 21, 2015.
On August 20, 2015, Appellant filed a counseled omnibus motion nunc
pro tunc, which included a petition for writ of habeas corpus. Appellant’s
Omnibus Pretrial Motion Nunc Pro Tunc, 8/20/15, at 4-5.
In [his] petition for writ of habeas corpus, [Appellant] argued that
“[a] writ of habeas corpus should issue in this case and the
charges for unlawful practice of law [should be] dismissed since a
prima facie case cannot be established.” Id. at 4. Specifically,
[Appellant] asserted the following:
[I]n order for a prima facie case for unauthorized practice
of law to be made under [42 Pa.C.S.A.] § 2524, the
Commonwealth must establish that [Appellant] practiced
law in such a manner as to convey the impression that he is
a practitioner of the law of any jurisdiction, without
[actually] being a [licensed] attorney at law.
Id. at 5.
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The trial court granted [Appellant’s] omnibus pretrial motion in
part and scheduled a hearing on the petition for writ of habeas
corpus for September 23, 2015.[3] [Trial Court] Order, 8/27/15,
at 1. At the hearing, both parties presented argument regarding
the elements necessary to establish a prima facie case of the
unauthorized practice of law. N.T. [Hearing,] 9/23/15, at 6–22.
During the hearing, the trial court concluded that a person
charged with the unauthorized practice of law must do so in a
manner so as to convey the impression that he is a practitioner of
the law when, in fact, he is not, in order for the individual to be
convicted. Id. at 21. Following the trial court's determination,
the Commonwealth requested certification for purposes of an
immediate appeal, and [Appellant] did not object. Id. at 22.
Accordingly, the trial court continued the habeas hearing pending
the appeal to this Court. Id.
***
On December 23, 2015, the Commonwealth filed a petition for
permission to appeal in this Court. Petition for Permission to
Appeal, 12/23/15. By order filed February 2, 2016, this Court
granted the Commonwealth's petition for permission to appeal.
Order, 83 MDM 2015, 2/2/16.
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3 “A pre-trial habeas corpus motion is the proper means for testing whether
the Commonwealth has sufficient evidence to establish a prima facie case.”
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) (en
banc). If, however, a defendant waives his preliminary hearing, he is
generally barred from later challenging “the sufficiency of the
Commonwealth's prima facie case.” Pa.R.Crim.P. 541(A)(1). Herein,
Appellant waived his preliminary hearing on May 13, 2013. The trial court
nevertheless permitted Appellant to challenge the sufficiency of the
Commonwealth’s evidence to establish its prima facie case because it
concluded that Appellant’s waiver of counsel and, in turn, his waiver of a
preliminary hearing, were invalid because the trial court failed to conduct a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
See Commonwealth v. Aina, 2020 WL 1528032, at *4 (Pa. Super. Mar. 31,
2020) (explaining that a court “must conduct a Grazier hearing and elicit
information in accordance with Pa.R.Crim.P. 121 before [a] petitioner will be
permitted to proceed pro se,” even if an intention to do so “is evinced[.]”);
see also Trial Court Opinion, 11/25/15, at 2.
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Commonwealth v. Pilchesky, 151 A.3d 1094, 1095-1097 (Pa. Super. 2016)
(footnote added).
On December 6, 2016, this Court reversed the trial court’s November
23, 2015 order. Id. In doing so, we held that
the trial court erred by holding that in order for [Appellant] to be
convicted of the unauthorized practice of law, the Commonwealth
is required to establish that [Appellant] practiced law and that he
did so “in such a manner as to convey the impression that he is a
practitioner of the law.” Should the Commonwealth establish
beyond a reasonable doubt that [Appellant] practiced law and was
not an attorney, such evidence would be sufficient to convict
[Appellant] of the unauthorized practice of law under 42
Pa.C.S.[A]. § 2524(a).
Id. at 1100. Thereafter, Appellant filed a petition for allowance of appeal to
our Supreme Court and a petition to proceed pro se. On June 12, 2017, the
Supreme Court remanded the case for a Grazier hearing, which the trial court
subsequently conducted and granted Appellant permission to proceed pro se.
Our Supreme Court ultimately denied allocatur on November 28, 2017.
On January 5, 2018, Appellant filed a notice of intent to file a petition
for writ of certiorari to the Supreme Court of the United States. The trial court
conducted a hearing on January 11, 2018. At the hearing, Appellant again
expressed his intent to file a certiorari petition,4 while the Commonwealth
asked the court to schedule trial. Accordingly, the trial court entered an order
scheduling trial for October 15, 2018.
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4Appellant ultimately filed a petition for writ of certiorari, which the Supreme
Court of the United States denied.
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On July 16, 2018, Appellant filed an omnibus pre-trial motion. In his
motion, Appellant sought to dismiss the action with prejudice due to a violation
of his right to a speedy trial pursuant to Pa.R.Crim.Pro 600 and his right to a
full preliminary hearing. Appellant’s Omnibus Pre-Trial Motion, 7/16/18, at
1-5. In addition, Appellant sought to suppress evidence collected from a Dell
computer given to police by his estranged wife, Joanne Ricci Pilchesky
(“Ricci”). Appellant claimed that any evidence discovered on or from the
computer was “fruit of the poisonous tree” because Ricci allegedly stole the
computer from his residence and gave it to the police. Id. at 7. Lastly,
Appellant challenged the constitutionality of 42 Pa.C.S.A. § 2524(a). Id. at
7-9.
On September 5, 2018, Appellant filed a motion in limine which
contained 49 separate paragraphs. In his motion, Appellant essentially sought
to prevent the Commonwealth from introducing all evidence that was not
favorable to him while simultaneously seeking to introduce evidence he
believed would be beneficial. Appellant’s Motion in Limine, 9/5/18, at 1-9.
On October 4 and 9, 2018, the trial court conducted hearings during
which the Commonwealth presented its prima facie case and the court
addressed the pending motions. During the October 9, 2018 hearing,
Appellant requested permission to present at trial the defense of justification
by necessity. The trial court denied Appellant’s request. Appellant then “orally
requested [the court] to certify this particular ruling under 42 Pa.C.S.A.
§ 702(b) as an interlocutory appeal.” Trial Court Order, 10/11/18, at 1. The
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trial court declined to do so. In a separate order, the trial court granted in
part and denied in part Appellant’s remaining pre-trial motions. See Trial
Court’s Memorandum & Order, 10/11/18, at 1-13.
Thereafter, on October 15, 2018, the day that trial was scheduled to
commence, Appellant filed a motion to continue the proceeding. Appellant’s
Motion to Continue Trial, 10/15/18, at 1-4. Appellant asserted various reasons
for the continuance, including personal health concerns and a claim that he
had insufficient time to review the transcripts from the October 4, 2018
hearing. The trial court “advised [Appellant] that [it] would delay the
commencement of jury selection to allow him to obtain pertinent medical
records in support of his request for a continuance.” Trial Court Opinion,
5/30/19, at 11. Appellant later returned with medical records. The trial court
reviewed the documents on the record but ultimately denied Appellant’s
motion for a continuance. Id.
Following the trial court’s denial of Appellant’s motion, his jury trial
finally commenced. On October 16, 2018, the jury convicted Appellant of
three counts of unauthorized practice of law. “On January 2, 2019, [the trial
court] sentenced [Appellant] to a combined period of probation of two years,
together with an order of restitution in the amount of $1,000[.00].” Id. at 1.
Appellant filed a post-sentence motion on January 14, 2019. Thereafter,
on April 8, 2019, Appellant filed a motion seeking modification of costs and
restitution. On April 15, 2019, Appellant filed a civil action against Sheila
Hartman and Mary Chilipko. Thus, the Commonwealth filed a motion
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requesting the modification of Appellant’s probation seeking to prohibit
Appellant from retaliating against any victim or witness in his case.
On May 30, 2019, the trial court entered an order denying Appellant’s
post-sentence motion and his motion to modify the costs and restitution. The
next day, the trial court granted the Commonwealth’s motion to modify the
conditions of Appellant’s probation and directed him to withdraw his civil action
against Sheila Hartman and Mary Chilipko. This appeal followed.5
Appellant raises the following issues on appeal:6
I. Was [] Appellant’s right to a speedy trial violated?
II. Was the jury selection process prejudiced when [the] [t]rial
[c]ourt summoned a [65] person jury pool?
III. Was [] Appellant prejudiced when [the] [t]rial [c]ourt
precluded [him from presenting] the defense of justification
[by necessity] to the jury?
IV. Was [] Appellant provided with a proper, legal[,] and
appropriate preliminary hearing?
V. [Did the trial court err in denying Appellant’s motion to
continue trial when the Commonwealth presented its prima
facie case only ten days before trial, resulting in prejudice
to Appellant?]
VI. Is 42 Pa.C.S.A. § 2524(a) unconstitutional?
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5Our review of the certified record reveals that the trial court did not order
Appellant to file a concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
6 We have altered the order of Appellant’s issues for clarity and ease of
discussion. See Appellant’s Brief at 5-6.
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VII. Was [] Appellant denied the right to confront his accuser at
trial?
VIII. Should all evidence obtained from [the] Dell computer
stolen from [] Appellant have been suppressed?
IX. Was [Appellant’s] court-appointed counsel ineffective?
X. Did the Commonwealth prove at trial that [Appellant] was
charged with any crime?
Appellant’s Brief at 5-6.
Before reviewing Appellant’s claims, we must address the timeliness of
his appeal. The timeliness of an appeal implicates our jurisdiction, which we
may raise sua sponte. Commonwealth v. Andre, 17 A.3d 951, 957–958
(Pa. Super. 2011).
Rule of Criminal Procedure 720 sets forth the procedure to be
followed when a post-sentence motion is filed. Under this rule,
the trial court must decide the post-sentence motion within 120
days of the filing of the motion. Pa.R.Crim.P. 720(B)(3)(a). … If
the trial court fails to decide the motion within this time period, it
is deemed denied by operation of law. Id. Where a post-sentence
motion is denied by operation of law, the clerk of courts is directed
to enter an order on behalf of the court and “forthwith furnish a
copy of the order ...to ... the defendant(s) and defense counsel....”
Pa.R.Crim.P. 720(B)(3)(d).
Ordinarily, the time for filing an appeal begins to run on the date
the post-sentence motion is denied, either by the court or by
operation of law.
Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003).
Herein, Appellant filed his post-sentence motion on January 14, 2019.
Accordingly, the 120-day period for a decision on Appellant’s post-sentence
motion expired on May 14, 2019 and, as such, Appellant needed to file his
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notice of appeal on or before June 13, 2019. Appellant filed his notice of
appeal on June 24, 2019. “However, our review of the record clearly shows
that the clerk of courts did not enter an order reflecting that Appellant's
post-sentence motion was denied by operation of law. This Court has
previously held that, where the clerk of courts does not enter an order
indicating that the post-sentence motion is denied by operation of law and
notify the defendant of [the] same, a breakdown in the court system has
occurred and we will not find an appeal untimely under these circumstances.”
Perry, 820 A.2d at 735 (citation omitted). As such, we decline to quash the
instant appeal as untimely and will proceed to the merits of Appellant’s claims.
In his first issue, Appellant claims that the trial court erred in denying
his motion to dismiss pursuant to Pa.R.Crim.P. 600. Per Appellant, the
significant delay between the filing of the criminal complaint to the
commencement of his trial is wholly attributable to the Commonwealth
because it failed to exercise due diligence and filed an interlocutory appeal to
this Court. Appellant’s Brief at 19-26. We disagree.
We review a trial court's order denying a Rule 600 motion for an abuse
of discretion. Commonwealth v. McCarthy, 180 A.3d 368, 373 (Pa. Super.
2018), appeal denied, 193 A.3d 346 (Pa. 2018) (citation omitted). Our “scope
of review is limited to the evidence on the record of the Rule [600] evidentiary
hearing, and the findings of the [trial] court. An appellate court must view
the facts in the light most favorable to the prevailing party.” Commonwealth
v. Wendel, 165 A.3d 952, 956 (Pa. Super. 2017) (citation omitted).
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Rule 600 provides, in relevant part:
(A) Commencement of Trial; Time for Trial
(1) For the purpose of this rule, trial shall be deemed to
commence on the date the trial judge calls the case to trial,
or the defendant tenders a plea of guilty or nolo contendere.
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint is
filed against the defendant shall commence within 365
days from the date on which the complaint is filed.
***
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any
stage of the proceedings caused by the Commonwealth
when the Commonwealth has failed to exercise due
diligence shall be included in the computation of the time
within which trial must commence. Any other periods of
delay shall be excluded from the computation.
***
(D) Remedies
(1) When a defendant has not been brought to trial within
the time periods set forth in paragraph (A), at any time
before trial, the defendant's attorney, or the defendant if
unrepresented, may file a written motion requesting that
the charges be dismissed with prejudice on the ground that
this rule has been violated. A copy of the motion shall be
served on the attorney for the Commonwealth concurrently
with filing. The judge shall conduct a hearing on the motion.
Pa.R.Crim.P. 600.
This Court has explained
the courts of this Commonwealth employ three steps in
determining whether Rule 600 requires dismissal of charges
against a defendant. First, Rule 600(A) provides the mechanical
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run date. Second, we determine whether any excludable time
exists pursuant to Rule 600(C). We add the amount of excludable
time, if any, to the mechanical run date to arrive at an adjusted
run date.
Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018) (cleaned
up).
Herein, the mechanical run date was February 27, 2014. We must,
however, “account for any ‘excludable time’ and ‘excusable delay.’”
Commonwealth v. Colon, 87 A.3d 352, 357 (Pa. Super. 2014). “Excludable
time is delay that is attributable to the defendant or his counsel.” Id. Thus,
“[w]hen the defendant or the defense [was] instrumental in causing the delay,
the period of delay will be excluded from computation of time.” See
Pa.R.Crim.P 600, Cmt. Moreover, “periods of judicial delay are excludable
from calculations under Rule 600.” Commonwealth v. Mills, 162 A.3d 326,
325 (Pa. 2017). Excusable delay “is delay that occurs as a result of
circumstances beyond the Commonwealth's control and despite its due
diligence.” Colon, 87 A.3d at 357.
Due-diligence is a fact-specific concept that is determined on a
case-by-case basis. Due diligence does not require perfect
vigilance and punctilious care, but rather a showing by the
Commonwealth that a reasonable effort has been put forth.
Judicial delay may justify postponing trial beyond the adjusted run
date if the Commonwealth was prepared to commence trial prior
to the expiration of the mandatory period but the court was
unavailable because of ‘scheduling difficulties and the like.’
Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012), appeal
denied, 63 A.3d 1245 (Pa. 2013) (internal citations and quotations omitted).
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It is clear that, in this case, Appellant was “instrumental in causing the
delay.” See Pa.R.Crim.P 600, Cmt. Indeed, Appellant caused the following
periods of delay: July 23, 2013 to September 20, 2013 (Appellant’s motion to
recuse Judge Barrasse); January 16, 2014 to March 17, 2014 (Appellant’s
interlocutory appeal to this Court); April 30, 2014 to August 27, 2015
(Appellant’s request for counsel, Appellant’s counseled omnibus motion nunc
pro tunc, and the hearing on Appellant’s motion); and January 5, 2017 to
November 28, 2017 (Appellant’s appeal to our Supreme Court following this
Court’s decision in Pilchesky). Moreover, the following periods are
attributable to judicial delay: September 20, 2013 to December 17, 2013
(assignment of Judge Geroulo, hearing and subsequent grant of the
Commonwealth’s motion in limine); March 17, 2014 to April 30, 2014 (order
scheduling trial to pre-trial hearing); August 27, 2015 to November 23, 2015
(order granting, in part, Appellant’s omnibus motion nunc pro tunc, conducting
the habeas corpus hearing, order granting Appellant’s motion and certifying
for immediate interlocutory appeal); and January 11, 2018 to October 15,
2018 (scheduling trial for October 15, 2018 due to trial court’s schedule). As
such, a total of 1,427 days are attributable to Appellant and the judiciary;
hence, this time is excludable. Adding the excludable time to the mechanical
run date, we calculate the adjusted run date to be January 24, 2018.
On December 23, 2015, the Commonwealth petitioned for permission
to appeal to this Court, seeking review of the trial court’s order granting
Appellant’s habeas corpus petition. This Court granted the Commonwealth’s
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petition and reversed the trial court’s order on December 6, 2016. “It is
settled that ‘[e]xcusable delay’ for purposes of [the speedy trial rule] includes
delay caused by appellate review of pretrial motions.” Commonwealth v.
Selenski, 994 A.2d 1083, 1090 (Pa. 2010) (citation omitted). Accordingly,
the 349 day delay occasioned by appellate review is excusable. This
calculation extends the final run date to (at the earliest) January 8,
2019 – nearly three months after Appellant’s trial commenced. Hence, the
trial court properly denied Appellant’s Rule 600 motion.
In Appellant’s second issue, he challenges the trial court’s decision to
summon a 65 person jury pool. Appellant’s Brief at 50. Per Appellant, this
prevented him from effectively questioning those ultimately selected for the
jury panel and, as such, prejudiced him “right from the start of the trial.” Id.
at 53. Appellant, however, failed to object during the jury selection process.
As such, this claim is waived. See Commonwealth v. Fitzgerald, 877 A.2d
1273, 1274 (Pa. Super. 2005) (“the absence of objection to the [jury
selection] procedure during the trial proceedings” results in waiver); see also
Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”).
In his third issue, Appellant argues that the trial court erred in disposing
of motions in limine filed by both parties, which precluded the presentation at
trial of the defense of justification by necessity. Appellant’s Brief at 45-50.
Preliminarily, we note:
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When reviewing [a ruling on] a motion in limine, we apply an
evidentiary abuse of discretion standard of review. The admission
of evidence is committed to the sound discretion of the trial court
and our review is for an abuse of discretion.
A trial court's ruling regarding the admissibility of evidence will
not be disturbed “unless that ruling reflects” “manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support as to be clearly ‘erroneous.’ ”
Commonwealth v. Orie, 88 A.3d 983, 1022 (Pa. Super. 2014) (citation
omitted).
“Necessity” may be raised as a defense if:
(1) the harm or evil sought to be avoided by such conduct is
greater than that sought to be prevented by the law defining the
offense charged;
(2) neither this title nor other law defining the offense provides
exceptions or defenses dealing with the specific situation involved;
and
(3) a legislative purpose to exclude the justification claimed does
not otherwise plainly appear.
18 Pa.S.C.A. § 503.
To be entitled to an instruction on justification by necessity as a defense
to a charged crime, an appellant must offer evidence to show:
(1) that (he) was faced with a clear and imminent harm, not one
which is debatable or speculative;
(2) that (he) could reasonably expect that (his) actions would be
effective in avoiding this greater harm;
(3) that there is no legal alternative which will be effective in
abating the harm; and
(4) that the Legislature has not acted to preclude the defense by
a clear and deliberate choice regarding the values at issue.
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As with any offer of proof, it is essential that the offer meet a
minimum standard as to each element of the defense so that if a
jury finds it to be true, it would support the affirmative
defense-here that of necessity. This threshold requirement is
fashioned to conserve the resources required in conducting jury
trials by limiting evidence in a trial to that directed at the elements
of the crime or at affirmative defenses raised by the defendant.
Where the proffered evidence supporting one element of the
defense is insufficient to sustain the defense, even if believed, the
trial court has the right to deny use of the defense and not burden
the jury with testimony supporting other elements of the defense.
Commonwealth v. Billings, 793 A.2d 914, 916 (Pa. Super. 2002), citing
Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa. 1985).
In ruling that Appellant was not entitled to a jury instruction of
justification by necessity, the trial court explained:
In this case, [Appellant failed to present] any evidence that shows
that he is entitled to an instruction on [the defense of] justification
[by] necessity [to the offense of] unauthorized practice of law. It
is difficult to imagine a situation in which the defense of
justification would ever be available for the unauthorized practice
of law, and in this case, pursuant to the four criteria set forth in
Capitolo, it is definitely not appropriate. First, [Appellant] was
not faced with a real emergency, and the alleged harm was
debatable and speculative. By [Appellant’s] own admission, the
people who approached him for help had allegedly been suffering
"harm" for some time and some of the harm was caused by
complying with court orders, but this does not constitute an
emergency that only he could handle by the unauthorized practice
of law. Second, even if his legal capabilities approached the level
of his own estimation . . . this does not lead to the conclusion that
he [alone] . . . could offer legal help to these people. Third, and
most importantly, there were many legal alternatives available to
[Appellant]. [Appellant] asserts that he had no choice but to
agree to take legal action on behalf of the people who approached
him for help, but he could have referred them to any of the
thousands of lawyers who are licensed to practice law in
Pennsylvania. Finally, the [L]egislature has required that only
licensed attorneys may practice law in Pennsylvania, and [] made
it a crime for a person who is not licensed to practice law to do so.
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The [L]egislature has thus made a clear and deliberate choice that
people who are not licensed . . . will not be allowed to practice
law, and has precluded the defense of justification [by] necessity
to a charge of the unauthorized practice of law.
Trial Court Opinion, 12/17/13, at 4-5. We perceive no abuse of discretion by
the trial court in prohibiting Appellant from presenting the defense of
justification by necessity at trial.
In Appellant’s fourth issue, he argues that he did not receive a “proper,
legal[,] and appropriate preliminary hearing.” Appellant’s Brief at 62.
Appellant’s claim is rooted in his belief that this Court in Pilchesky
“dramatically changed the meaning of 42 Pa.C.S.A. § 2524(a)” and, “if a
preliminary hearing occurred before [this Court’s decision,]” the
“Commonwealth [would have been required to] meet [a] different standard.”
Id. Appellant’s claim is meritless.
“The purpose of a preliminary hearing is to avoid the incarceration or
trial of a defendant unless there is sufficient evidence to establish a crime was
committed and the probability the defendant could be connected with the
crime.” Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa. Super.
2004) (internal citation omitted); see also Pa.R.Crim.P. 542(D) (issuing
authority shall determine from evidence presented at preliminary hearing
whether there is prima facie case that (1) offense has been committed and
(2) defendant has committed it). A defendant, if represented by counsel, may
waive his preliminary hearing. Pa.R.Crim.P. 541(A). A pro se defendant,
however, can only “waive [his] preliminary hearing subsequent to the
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preliminary arraignment.” Pa.R.Crim.P. 541, Cmt. Nevertheless, the waiver
of a preliminary hearing without an attorney is not invalid absent a showing
of prejudice. Commonwealth v. Strawn, 2020 WL 201736, at *3 (Pa.
Super. Jan. 13, 2020); Commonwealth v. Melnyczenko, 358 A.2d 98, 99
(Pa. Super. 1976).
Herein, on May 13, 2013, after Appellant’s preliminary arraignment,
Appellant executed a written waiver of both his right to counsel and his
preliminary hearing. At that time, however, the trial court did not conduct a
Grazier hearing. As such, Appellant’s waiver of his preliminary hearing was
invalid. For this very reason, after Appellant was appointed counsel and filed
a petition for habeas corpus, the trial court permitted Appellant to challenge
the sufficiency of the Commonwealth’s evidence on September 23, 2015. See
Trial Court Opinion, 11/25/15, at 2. After the hearing, the trial court
concluded that the Commonwealth was required to prove that Appellant
“committed the acts charged ‘in such a manner as to convey the impression
that he [was] a practitioner of the law of any jurisdiction, without being an
attorney at law.’” Id. at 8 (citation omitted).
Ultimately, however, this Court disagreed with the trial court’s
determination. Instead, we concluded that, to sustain a conviction under
Section 2524(a), the Commonwealth needed only to establish that Appellant
practiced law and was not a licensed attorney. Pilchesky, 151 A.3d at 1100.
Then, on October 4, 2018, the trial court conducted a hearing in which the
Commonwealth presented a prima facie case pursuant to this Court’s holding
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in Pilchesky. It is thus apparent that, despite an initial invalid waiver of his
preliminary hearing, Appellant actually challenged the sufficiency of the
Commonwealth’s evidence on two separate occasions. Appellant’s mere
assertion that this Court’s interpretation of Section 2524(a) was either novel
or incorrect does not result in prejudice. We therefore conclude that
Appellant’s claim is without merit and he is not entitled to relief.
Appellant’s fifth claim asserts that the trial court erred in denying his
motion to continue trial. Specifically, Appellant claims that, because the
Commonwealth presented its prima facie case only ten days prior to trial, he
did not have enough time to review the transcripts of the hearing and prepare
for trial. Appellant’s Brief at 58-62.
Our standard of review when considering a court's decision to deny a
motion for a continuance is as follows:
The grant or denial of a motion for a continuance is within the
sound discretion of the trial court and will be reversed only upon
a showing of an abuse of that discretion. [A]n abuse of discretion
is not merely an error of judgment. Rather, discretion is abused
when the law is over-ridden or misapplied, or the result of
partiality, prejudice, bias, or ill-will as shown by the evidence or
the record. The grant of a continuance is discretionary and a
[denial] is reversible error only if prejudice or a palpable and
manifest abuse of discretion is demonstrated.
Commonwealth v. Griffin, 804 A.2d 1, 12 (Pa. Super. 2002), appeal denied,
868 A.2d 1198 (Pa. 2005) (internal citations and quotation marks omitted).
Moreover, “[a] bald allegation of an insufficient amount of time to prepare will
not provide a basis for reversal of the denial of a continuance motion.”
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Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (citation
omitted). “An appellant must be able to show specifically in what manner he
was unable to prepare for his defense or how he would have prepared
differently had he been given more time. We will not reverse a denial of a
motion for continuance in the absence of prejudice.” Id. (citation omitted).
Herein, Appellant filed his motion for a continuance on the date of trial,
October 15, 2018. In his motion, Appellant claimed that, “[d]ue to inherent
time constraints,” he could only obtain a portion of the transcripts from the
October 4, 2018 hearing and did not have an adequate time to review said
transcripts before trial. Appellant’s Motion to Continue Trial, 10/15/18, at *2
(un-paginated). On appeal, Appellant contends that he only received the
“testimony of [Special Agent] Farkus just before trial [and] [] did
[not] get the testimony of the [other] three witnesses, but even
if he did, having it right before trial was hardly fair. [Appellant]
had other things to do in preparation for trial, so time to review
[prima facie] transcripts was minimal.”
Appellant’s Brief at 60.
Appellant’s bald assertion is insufficient to establish prejudice. Indeed,
the mere fact that he could not review the transcripts of the three witnesses
prior to trial did not cause prejudice because he was present at the hearing
and heard, first hand, their testimony. Moreover, Appellant was aware of the
existence of these three witnesses as early as his formal arraignment on June
28, 2013. Thus, from 2013 on, Appellant knew that he was charged with
unauthorized practice of law because he drafted legal documents on behalf of
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these three individuals without a license to do so. As such, it is clear from a
review of the record that Appellant’s “rights were not trampled; he simply did
not wish to proceed to trial.” Trial Court Opinion, 5/30/19, at 8. Accordingly,
we discern no abuse of discretion.7
In Appellant’s sixth issue, he argues that 42 Pa.C.S.A. § 2524(a) is
unconstitutional. Appellant’s Brief at 26. Our Supreme Court previously
stated the standard for analyzing the constitutionality of criminal statutes as
follows:
[W]e begin our analysis by recognizing that there is a strong
presumption in the law that legislative enactments do not violate
the constitution. Moreover, there is a heavy burden of persuasion
upon one who challenges the constitutionality of a statute. As a
matter of statutory construction, we presume the General
Assembly does not intend to violate the Constitution of the United
States or of this Commonwealth. A statute will not be declared
unconstitutional unless it clearly, palpably, and plainly violates the
Constitution; all doubts are to be resolved in favor of a finding of
constitutionality.
Commonwealth v. Mayfield, 832 A.2d 418, 421 (Pa. 2003) (citations and
quotations omitted).
Herein, Appellant advances multiple arguments in an attempt to
invalidate Section 2524(a). In essence, however, Appellant argues that
Section 2524(a) and this Court’s previous interpretation thereof in Pilchesky,
____________________________________________
7 We also note that the hearing conducted on October 4, 2018 was originally
scheduled for September 27, 2018. It was continued, however, because
Appellant requested more time to respond to the Commonwealth’s brief in
opposition of his motion in limine. Trial Court’s Order, 9/26/18, at 1. It is
ironic that Appellant now claims prejudice resulting from a delay necessitated
by his own actions.
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“suppress[es] the right to speak or inquire for private interests,” and
“oppress[es] free thinking and a [private] exchange of knowledge” in violation
of the constitutional rights of free speech and privacy. Appellant’s Brief at
28-29.
Our Supreme Court previously explained:
The First Amendment to the United States Constitution states in
relevant part, “Congress shall make no law ... abridging the
freedom of speech[.]” U.S. Const. amend. I. It is well settled,
however, that the government may limit the exercise of a citizen's
First Amendment rights where government regulations are aimed
to address legitimate concerns and not designed to control or limit
the content of First Amendment freedoms. See Konigsberg v.
State Bar of California, 366 U.S. 36, 50–51 (1961)(withholding
of bar membership constitutional where applicant refused to
answer questions regarding membership in Communist Party thus
thwarting investigation into his “qualifications.”)[.]
With respect to restrictions on speech, a governmental regulation
will be upheld, as a general proposition, if four criteria are met:
(1) the regulation is within the constitutional power of the state;
(2) it furthers an important or substantial governmental interest;
(3) the governmental interest is unrelated to the suppression of
free speech; and (4) the incidental restriction on alleged first
amendment freedoms is no greater than essential to the
furtherance of that interest. United States v. Albertini, 472
U.S. 675, 687 (1985); United States v. O'Brien, 391 U.S. 367,
376 (1968).
Office Of Disciplinary Counsel v. Marcone, 855 A.2d 654, 667 (Pa. 2004).
Herein, we conclude that Section 2524(a) “does not run afoul of the First
Amendment.” Id. First, the “Pennsylvania Constitution vests [our Supreme
Court] with the exclusive authority to regulate the practice of law.”
Pilchesky, 151 A.3d at 1099; see also Pa. Const. Art. V, § 10(c). Second,
the Supreme Court has “not only an important and substantial interest, but a
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compelling interest, in regulating the practice of law within our borders:
protecting our citizens from those unfit to practice law.” Marcone, 855 A.2d
at 667. Third, contrary to Appellant’s assertion, Section 2524(a) is unrelated
to the suppression of free speech because it regulates an individual’s conduct.
Indeed, Appellant claims that he “was essentially charged with talking with
other people in a private capacity in a private setting for private interest.”
Appellant’s Brief at 28. This is incorrect. Appellant not only gave legal advice
to various individuals, but drafted and filed legal documents on their behalf.
Accordingly, as we stated previously, Section 2524(a) seeks to “[p]rotect[]
the public . . . by preventing those who are not attorneys from practicing
law,” not suppressing speech. Pilchesky, 151 A.3d at 1100 (emphasis
added). “Finally, we find that this restriction is no greater than absolutely
necessary to further the significant governmental interest in protecting the
public and the [legal] profession.” Marcone, 855 A.2d at 668. We therefore
conclude that Section 2524(a) does not violate an individual’s right to free
speech or privacy.
In Appellant’s seventh issue, he argues that his constitutional rights
were violated because he did not “have the opportunity to fully confront his
accuser, [Special Agent] Joseph Farkus.” Appellant’s Brief at 53. Special
Agent Farkus served as the affiant for the probable cause affidavit. Appellant,
however, failed to raise this objection before or during trial and instead, simply
included this claim in his post-sentence motion. “It is settled that an
appellant's ‘failure to raise a contemporaneous objection to evidence at trial
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waives that claim on appeal.’” Commonwealth v. Radecki, 180 A.3d 441,
455 (Pa. Super. 2018) (citation omitted). Accordingly, Appellant’s seventh
appellate issue is waived.
In Appellant’s eighth issue, he argues that the trial court erred by
denying his motion to suppress evidence from a Dell computer. Appellant’s
Brief at 65-66. Appellant argues that Ricci, his “estranged wife,” stole the
computer from his residence and later gave it to investigating authorities. As
such, Appellant claims that any “information gained from [the] computer” was
“[f]ruit of the [p]oisonous tree.” Id. at 65.
We review the denial of a motion to suppress as follows:
An appellate court's standard of review in addressing a challenge
to a trial court's denial of a suppression motion is limited to
determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. Since the prosecution prevailed in the suppression
court, we may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
un[-]contradicted when read in the context of the record as a
whole. Where the record supports the factual findings of the trial
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Stevenson, 894 A.2d 759, 769 (Pa. Super.
2006) (citation omitted). Although we are bound by the factual
and the credibility determinations of the trial court which have
support in the record, we review any legal conclusions de novo.
Commonwealth v. George, 878 A.2d 881, 883 (Pa. Super.
2005), appeal denied, [] 891 A.2d 730 (Pa. 2005).
Commonwealth v. Wells, 916 A.2d 1192, 1194–1195 (Pa. Super. 2007)
(parallel citations omitted)
We note:
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The Fourth Amendment's protection against unlawful searches
and seizures applies only to actions by the government, as “[i]ts
origin and history clearly show that it was intended as a restraint
upon the activities of sovereign authority[.]” Burdeau v.
McDowell, 256 U.S. 465, 475 (1921). It follows, therefore, that
“the proscriptions of the Fourth Amendment and Article I, § 8, do
not apply to searches and seizures conducted by private
individuals.” Commonwealth v. Faurelus, 147 A.3d 905, 909
(Pa. Super. 2016)[, quoting Commonwealth v. Harris, 817 A.2d
1033, 1047 (Pa. 2002) (citations omitted)].
Where, however, private individuals act not of their own accord
but, instead, as an instrument or agent of the state, they will be
deemed state actors subject to the proscriptions of the Fourth
Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 487
(1971). Decisional law of this Commonwealth has examined the
question of what constitutes state action in such circumstances.
As set forth [in the Pennsylvania Supreme Court decision
Commonwealth v. Corley, 491 A.2d 829 (Pa. 1985)],
therein, the guiding principles are those first established by
the United States Supreme Court in Lugar v. Edmondson
Oil Co., Inc., 457 U.S. 922 (1982). In Lugar, the [United
States] Supreme Court held that the conduct allegedly
causing the deprivation must be fairly attributable to the
state. In explaining the “fair attribution” test, the United
States Supreme Court stated:
[Our] cases reflect a two-part approach to the question
of “fair attribution.” First, the deprivation must be
caused by the exercise of some right or privilege created
by the state. ... Second, the party charged with the
deprivation must be a person who may fairly be said to
be a state actor. This may be because ... his conduct is
otherwise chargeable to the state.
Lugar, 457 U.S. at 937. The critical factor for purposes of
determining whether state action is involved is whether the
private individual, in light of all the circumstances, must be
regarded as having acted as an “instrument” or agent of the
state. Corley, 491 A.2d at 832, citing Coolidge[, 403 U.S.
at 487.] Th[e Pennsylvania Supreme] Court made clear in
Corley that mere cooperation with the authorities alone
does not constitute “state action.” In other words, the mere
fact that police and prosecutors use the results of an
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individual's actions does not, alone, elevate those actions to
the level of state action. Where, however, the relationship
between the person committing the wrongful acts and the
State is such that those acts can be viewed as emanating
from the authority of the State, the principles established in
Corley dictate a finding of state action.
Commonwealth v. Yim, 195 A.3d 922, 927 (Pa. Super. 2018) (parallel
citations omitted).
We conclude that the trial court did not err in denying Appellant’s motion
to suppress because Appellant failed to establish that Ricci stole the Dell
computer from his residence and, relatedly, that Ricci acted at the direction
of the Commonwealth. Indeed, upon review of the certified record, it appears
that Ricci removed the Dell computer in August 2011 and gave it to law
enforcement in November 2011 for reasons wholly unrelated to Appellant’s
unauthorized practice of law.8 See District Attorney Letter, 3/14/13, at 1.
Appellant also failed to offer evidence that the Commonwealth asked or
directed Ricci to take his computer. As such, Appellant’s claim lacks merit.9
____________________________________________
8 Ricci gave the Dell computer to police alleging that Appellant utilized the
computer to view child pornography. See District Attorney Letter, 3/14/13,
at 1. She consented to a forensic examination but no evidence of child
pornography was located on the Dell computer. Id.
9 We also note that prior to trial, the Commonwealth stated that it would not
use any evidence obtained from the Dell computer during Appellant’s trial.
N.T. Hearing, 10/9/18, at 22. Indeed, no evidence obtained from the Dell
computer was admitted at trial and no derivative evidence was discovered by
the Commonwealth as a result of its acquisition of the device. Accordingly,
even if the trial court did err in denying Appellant’s motion to suppress, we
would conclude that such error was either moot or harmless or both.
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In Appellant’s ninth issue, he argues that trial counsel who represented
Appellant from March 2, 2015 until August 18, 2017, provided ineffective
assistance. Appellant’s Brief at 66-67. Specifically, Appellant argues that trial
counsel was ineffective because he failed to object to the Commonwealth’s
interlocutory appeal and agreed that the Commonwealth could utilize
statements made by Appellant while acting pro se against him at trial. Id. at
67. Except in limited circumstances not present in this case, claims of
ineffective assistance of counsel may not be raised on direct appeal.
Commonwealth v. Cook, 175 A.3d 345, 351 n.3 (Pa. Super. 2017).
Accordingly, Appellant is not entitled to review of his ineffective assistance of
counsel claim within the context of this direct appeal.
Lastly, Appellant argues that the Commonwealth failed to prove that he
was charged with “any crime” at trial. Appellant’s Brief at 67. Per Appellant,
in the absence of testimony from Special Agent Farkus, the Commonwealth
failed to adduce sufficient evidence that charges “were filed or existed” or that
“a crime occurred.” Id. at 68. We disagree.
Our standard of review regarding the sufficiency of the evidence is as
follows:
The standard we apply in reviewing the sufficiency of 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 that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth may not
preclude every possibility of innocence. Any doubts regarding a
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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. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)
(citations omitted).
Section 2524(a) defines the offense of unauthorized practice of law as
follows:
(a) General rule.—Except as provided in subsection (b) [related
to practice by associations], any person, including, but not limited
to, a paralegal or legal assistant, who within this Commonwealth
shall practice law, or who shall hold himself out to the public as
being entitled to practice law, or use or advertise the title of
lawyer, attorney at law, attorney and counselor at law, counselor,
or the equivalent in any language, in such a manner as to convey
the impression that he is a practitioner of the law of any
jurisdiction, without being an attorney at law or a corporation
complying with 15 Pa.C.S. Ch. 29 (relating to professional
corporations), commits a misdemeanor of the third degree upon
a first violation. A second or subsequent violation of this
subsection constitutes a misdemeanor of the first degree.
42 Pa.C.S.A. § 2524(a). As this Court explained previously, if “the
Commonwealth establish[es] beyond a reasonable doubt that [Appellant]
practiced law and was not an attorney, such evidence would be sufficient to
convict [Appellant] of the unauthorized practice of law under 42 Pa.C.S.[A].
§ 2524(a).” Pilchesky, 151 A.3d at 1100.
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The trial court summarized the relevant testimony/evidence presented
as follows:
Dana Lewis testified that she reached out to [Appellant, who she
admitted was not an attorney,] for assistance in a custody dispute.
She testified that she gave [Appellant] information about the
custody case, that he assisted her in drafting legal documents and
in filing those documents. She further testified that [Appellant]
asked her for payment of $3,000.00 for his assistance.
Additionally, the Commonwealth offered [electronic mail]
communication between Dana Lewis and [Appellant] as well as
the documents identified by Lewis that [Appellant] assisted her in
drafting.
***
[Appellant’s] second count concern[ed] Sheila Hartman. Hartman
testified that she was advised by [Appellant] that her attorney had
done things incorrectly in a civil lawsuit in which she was involved
with her former employer. Hartman further testified that in
exchange for payment, [Appellant] drafted correspondence and
motions for her so that she could terminate her previous attorney
and request her file from him. Hartman paid [Appellant]
$1,000.00 for the drafting of documents to be filed in her case.
The Commonwealth also offered documentary evidence of
[Appellant] supplying legal advice to Hartman as well as the
documents he drafted.
The third count involved Mary Chilipko. Chilipko testified that she
was a neighbor of one Edward Blasko who had once been a
resident of the Greenridge Assisted Living Facility. Chilipko
testified that she and Blasko discovered that the owners of the
facility had continued to cash his Social Security checks without
his knowledge or consent. Chilipko testified that she contacted
[Appellant] on behalf of Blasko and indicated that [Appellant]
wanted to help and advised filing a lawsuit against the owners of
the facility. Chilipko testified that [Appellant] prepared a civil
action on behalf of Blasko seeking return of the Social Security
check money as well as damages. [Appellant] filed the lawsuit
after obtaining Blasko’s signature. Appellant was paid $500.00
for his assistance.
Trial Court Opinion, 5/30/19, at 16-18.
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It is undisputed that Appellant, during all times relating to the
allegations made by Lewis, Hartman, and Chilipko, was not licensed to practice
law within the Commonwealth of Pennsylvania or any other state. When
viewing the aforementioned evidence in the light most favorable to the
Commonwealth, we hold that the evidence presented in this case was
sufficient to prove that Appellant practiced law and was not an attorney.
Because none of Appellant’s issues warrant relief, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/08/2020
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