Milani, M. v. Kalka, L. ( 2022 )

J-A08036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MANDY M. MILANI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEVI J. KALKA :
:
Appellant : No. 1091 WDA 2021
Appeal from the Order Entered August 12, 2021
In the Court of Common Pleas of Erie County Civil Division at No(s):
16419-2021
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 19, 2022
Levi J. Kalka (Appellant) appeals pro se from the order entered in Erie
County Court of Common Pleas granting the petition filed by his former
paramour, Mandy M. Milani (Appellee), under the Protection from Abuse (PFA)
Act,1 following a full hearing. On appeal, Appellant argues the trial court failed
to notify him of certain rights and consequences under 23 Pa.C.S. § 6107 of
the PFA Act (related to PFA hearings). Additionally, Appellant raises several
constitutional claims under the Fifth, Eighth, and Fourteenth Amendments of
the United States Constitution. For the below reasons, we affirm.
On August 1, 2021, at approximately 1:00 a.m., Appellee arrived at
Appellant’s apartment in Erie County, Pennsylvania. N.T. Final PFA H’rg,
8/12/21, at 11. After a verbal argument Appellee threw a glass of water at
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1 23 Pa.C.S. §§ 6101-6122.
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Appellant and he proceeded to physically attack and threaten to kill Appellee.
Id. at 12-13. Around 2:00 a.m., Appellee fled the apartment and contacted
the police. Id. at 9, 13-15.
Two days after the incident, Appellee filed a PFA petition, alleging
various acts of physical and emotional abuse by Appellant. A temporary PFA
order was granted that same day.
On August 12, 2021, the trial court held a final PFA hearing where both
Appellant and Appellee appeared and testified.2 Appellee described the August
1st incident as follows. At the time, Appellee and Appellant had been dating
for “four to five months” N.T. Final PFA H’rg at 9. When Appellee arrived at
Appellant’s apartment around 1:00 a.m., Appellee stated he “had already
been drinking” and “continue[d] to drink” after her arrival. Id. at 11-12.
While watching television, Appellant made derogatory statements about
Appellee and her family. Id. at 10-12. Appellee became angry and threw a
glass of water in Appellant’s face. Id. at 12. Appellant “immediately attacked”
Appellee. Id. Appellee described the ensuing altercation:
He charged at me and pinned me in the corner of the couch.
He had both of his legs on my knees and he would not let go of
my wrists and he was nose-to-nose screaming in my face,
spit[t]ing in my face. He then picked me up and slammed me on
the coffee table, which is where I got the brises on my back[.]
From there he picked me up and got me on the ground [and got]
on top of me, and that’s when it was getting worse. And he would
not let go of me.
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2 Appellant was acting pro se while Appellee was represented by counsel.
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Id.
Appellant then said, “I should just kill you[,]” while Appellee was
“begging him” to stop and “get off” of her. N.T. PFA Final H’rg at 13. Despite
Appellee’s pleas, Appellant continued his attack. Appellee testified:
[Appellant] still wouldn’t let go of my wrists. He was squeezing
tighter and tighter. And he let go of my left wrist, and his fist
went back. And the second he let go of my left wrist, I hit him in
the face to get away from him. And when that happened, it
escalated and got even worse. And that’s when he literally picked
me up, slammed me against the corner of the wall and like
scraped down my face, which is where all the scratches came
from. And I as bleeding some. And then he lifted his right knee
into my gut and called me a fucking cunt. And said, you’re never
going to get away from me and wrapped his arms around [ ] my
neck. And I had to pry his hands from my neck. And I was lucky
enough to do that and I got out of there.
Id.
After escaping Appellant’s apartment, Appellee drove to a convenience
store and called 911. N.T. PFA Final H’rg at 15. Appellant called her at 4:06
a.m., while she was with responding officers. Id. at 18. The officers “asked
if they could pick up the phone.” Id. Appellee handed one of the officers her
phone and the officer spoke to Appellant “for a good six to eight minutes, if
not[,] maybe ten.” Id. The officer told Appellant to “stop contacting”
Appellee. Id. After ending the conversation with Appellant, the officer told
Appellee, “it appears [Appellant] is extremely intoxicated and . . . said he had
no recollection of” the attack. Id. at 16. Appellee indicated that Appellant
continued to contact her through text messages, sending “one after another
after another” and “the texts got worse.” Id. at 18-19. For example,
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Appellant texted, “[Y]ou left your keys to my apartment, don’t come back[.]
I will shoot on sight[.]” Id. at 19.
Appellee stated she had “never been more emotionally abused in [her]
life[,]” and was “afraid for [her] physical safety[.]” N.T. Final PFA H’rg at 17.
Appellee provided photographic evidence of her injuries and text messages
from Appellant, that were admitted into evidence. Id. at 18.
Appellant then took the stand and stated that he did not drink any
alcohol before Appellee arrived at his apartment on the day of the incident.
N.T. Final PFA H’rg at 25. Appellant testified he was upset because he had
completed school work for Appellee, and that he believed “she should really
be doing her own assignments[.]” Id. at 21. Appellant stated Appellee was
the one who made an insulting comment about his ethnicity. Id. Appellant
stated he then made a comment about Appellee’s daughter, to which she
threw a drink in his face. Id. at 22. Appellant averred that he attempted to
restrain Appellee for his own protection and that she hit him in the face several
times, which caused him to bleed. Id. at 22-23. Appellant stated that he
then released Appellee and she left. Id. at 22. Appellant admitted that after
the incident, he did text Appellee “some stupid things.” Id. He also stated
he was “not sure” if he was responsible for Appellee’s injuries. Id. at 26. The
trial court allowed Appellant to submit evidence of text messages and his
injuries over Appellee’s objection. Id. at 26-27.
At the conclusion of the PFA hearing, the trial court granted Appellee’s
petition and issued an PFA order against Appellant for a period of three years.
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N.T. Final PFA H’rg, at 29. The trial court specifically found Appellee was “in
reasonable fear of imminent, serious, bodily injury.” Id.
On September 10, 2021, Appellant filed a timely3 pro se notice of
appeal. He also timely complied with the trial court’s order to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following two claims on appeal:
1. Were Appellant’s right under 23 [Pa.]C.S. § 6107 violated
where the [trial] court failed to advise [him] of the right to be
represented by counsel[, a]nd of the possibility that any
firearm, other weapon, or ammunition owned[,] and any
firearm license possessed may be ordered temporarily
relinquished, and of the options for relinquishment of a firearm
pursuant to this chapter[?]
2. Were Appellant’s rights under the Fifth, Eighth, and Fourteenth
Amendments to the United States [Constitution] violated[?]
Appellant’s Brief at 2 (unpaginated).
We review PFA orders under the following standard of review:
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3 The trial court stated “Appellant did not timely serve” the court with his
notice of appeal until after the court “discovered on its own” that Appellant
had filed a notice of appeal. Trial Ct. Op. 11/3/21, at 1, fn. 1; see also Order,
9/16/21. Appellant thereafter “served [the t]rial [c]ourt” with a copy of the
notice on September 21, 2021, 11 days after the deadline. Trial Ct. Op.
11/3/21, at 1, fn. 1.
Appellant had 30 days from the date the trial court granted the final PFA
order, or until September 11, 2021, to file a notice of appeal. See Pa.R.A.P.
903(a). The docket reflects Appellant filed his notice of appeal on September
10, 2021. Trial Ct. Docket No. 16419-2021, at 2 (unpaginated); Appellant’s
Notice of Appeal, 9/10/21 (wherein Appellant and timestamp both indicate the
filing date as September 10, 2021). Therefore, Appellant’s notice of appeal
was timely filed.
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We review the propriety of a PFA order for an abuse of discretion
or an error of law. We have described this standard as “not merely
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence or the record, discretion is abused.”
E.A.M. v. A.M.D., 173 A.3d 313, 316 (Pa. Super. 2017) (citations and some
quotation marks omitted).
We initially note that while “this Court is willing to construe liberally
materials filed by a pro se litigant, pro se status generally confers no special
benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245, 251-
52 (Pa. Super. 2003) (citation omitted). Furthermore, he is not entitled to
have this Court advocate on his behalf. Commonwealth v. Rivera, 685 A.2d
1011, 1013 (Pa. Super. 1996).
Appellant first argues that his rights under Section 6107 of the PFA Act
were violated when the court asked counsel for Appellee to “inform” Appellant
about the “general procedure and the rights and options that everybody has,
without informing” Appellant “of his right to be represented by counsel, on the
record.” Appellant’s Brief at 5 (some quotation marks omitted). Appellant
asserts:
Given the critical significance of the required notifications and the
fact that the defendant had a right to be represented by counsel
prior to the ruling of the final order, a defendant must be notified
of any rights in which he could have requested a continuance in
order to obtain legal counsel for the hearing. Additionally, during
the trial criminal charges were claimed to have been made against
[Appellant], but these charges were not filed until after the
conclusion of the final [PFA] order hearing[, and had he] been
aware of the criminal charges (which were subsequently dismissed
following testimonies by both parties at a criminal trial) he would
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have had the opportunity to ask for a continuance of the civil trial
until the criminal proceedings had concluded.
Appellant’s Brief at 6.
Section 6107 provides, in relevant part:
(a) General rule. — Within ten business days of the filing of a
petition under this chapter, a hearing shall be held before the
court, at which the plaintiff must prove the allegation of abuse by
a preponderance of the evidence. The court shall, at the time
the defendant is given notice of the hearing, advise the
defendant of the right to be represented by counsel, of the
right to present evidence, of the right to compel attendance of
witnesses, of the method by which witnesses may be compelled,
of the possibility that any firearm, other weapon or
ammunition owned and any firearm license possessed may
be ordered temporarily relinquished, of the options for
relinquishment of a firearm pursuant to this chapter, of the
possibility that Federal or State law may prohibit the possession
of firearms, including an explanation of 18 U.S.C. § 922(g)(8)
(relating to unlawful acts) and 18 Pa.C.S. § 6105 (relating to
persons not to possess, use, manufacture, control, sell or transfer
firearms), and that any protection order granted by a court may
be considered in any subsequent proceedings under this title. . . .
* * *
(c) Continued hearings.--
(1) If a hearing under subsection (a) is continued and no
temporary order is issued, the court may make ex parte
temporary orders under subsection (b) as it deems necessary.
(2) If a hearing is scheduled to take place within three
business days after a defendant is served under section 6106
(relating to commencement of proceedings), the court shall grant
a continuance until the three-business-day period has elapsed, if
requested by the defendant.
(3) The court shall notify the defendant of the right to such
continuance.
23 Pa.C.S. § 6107 (emphases added).
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Before addressing the merits of Appellant’s first argument, we must
determine if he has properly preserved this issue on appeal. As noted above,
the court ordered Appellant to file a Rule 1925(b) concise statement.
Appellant complied and raised the following issues in his statement:
[1. Eighth and Fourteenth] Amendment – Cruel and Unusual
Punishment/Deprivation of Property
In reference to the excessive fines clause of the [Eighth]
Amendment of the United States Constitution, it is believed that
[A]ppellant’s property was excessively seized. This is in relation
to his firearms being seized. It should be noted that [A]ppellee’s
counsel attempted to reach an agreement with [A]ppellant
regarding the PFA before initial proceedings in which he stated
that a request would be made to allow [A]ppellant to keep his
firearms as well as requesting a reduction for the term of the PFA.
Instead, following the proceedings, a maximum term of [three]
years was given, and [A]ppellant’s firearms were seized.
[2.] Mistake of Law - mens rea for abuse
It is believed that the [trial] court did not properly establish within
the reasoning of the given final order the mens rea for abuse
which, if properly established, would have eliminated the
consideration that [A]ppellant acted in self defense. [A]ppellant’s
testimony included explanations of attempting to restrain
[A]ppellee in an act to prevent injury, given that [A]ppellee had
attacked [A]ppellant first (evidenced by [A]ppellee’s statement in
requesting the temporary order and [A]ppellee’s testimony during
the final order hearing). [A]ppellant did not attempt to injure
[A]ppellee and there is no evidence that excessive (non-minor)
injuries had occurred[.] Additionally, [A]ppellee indeed injured
[A]ppellant in the event, and this is evidenced by image entries
during the final order hearing.
[3.] Mistake of Fact – restrain for protection
In the aforementioned paragraph, it was noted that intent for
abuse was not established by the [trial] court, and it is believed
that intent for abuse did not exist. Similarly, it is believed that
the court erred in establishing a distinction between restrain for
protection and restraint as an attack. It has been noted that in
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no instance did [A]ppellant restrain [A]ppellee in a manner which
he was preventing her from leaving. In fact, after [A]ppellee had
stopped attacking [A]ppellant, he let her go and she was free to
gather her belongings, change her clothes, and leave willingly.
[4.] Perjury – [A]ppellee’s remarks intentionally swearing a false
oath
[A]ppellee claimed that she was at [A]ppellant’s apartment within
a few days before the incident. [A]ppellant objected to this notion
and the [trial] court asked [A]ppellee if she was telling the truth.
[A]ppellee affirmed that she was telling the truth. It is confirmed
through text messages that [A]ppellee was knowingly and
intentionally lying about this fact.
Appellant’s Pro Se Statement of Matters Complained of on Appeal, 10/7/21.
Upon reviewing Appellant’s concise statement, it is evident that
Appellant did not raise a claim that his rights under 23 Pa.C.S. § 6107 were
violated in either his Rule 1925(b) statement or before the trial court. As
such, he has not preserved this argument for appellate review. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement . . . are waived.”);
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”). See also Commonwealth v.
Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020) (stating that “any issue not
raised in a Rule 1925(b) statement will be deemed waived for appellate
review.”) appeal denied, 250 A.3d 468 (Pa. 2021). Therefore, we conclude
Appellant’s first argument is waived.
Even if Appellant had preserved this claim, it would be deemed
meritless. Under Subsection 6107(a), the trial court must inform Appellant of
his right to have counsel and the possibility of relinquishing firearms and
firearms licenses “at the time [he] is given notice of the hearing[.]” 23 Pa.C.S.
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§ 6107(a). Here, on August 3, 2021, the trial court served Appellant with a
“Notice of Hearing and Order[,]” which explicitly informed Appellant the PFA
order may “direct[ him] to relinquish any firearm, other weapon, ammunition,
or any firearm license[,]” and of his “right to have a lawyer represent” him at
the hearing, but that the court was not required to appoint a lawyer for him.
Notice of Hearing and Order, 8/3/21, at 1-2 (unpaginated) (some
capitalization omitted). Thus, the court complied with the requirements of
Section 6107 and Appellant was put notice and advised of his rights.
Furthermore, his complaint about the lack of notice regarding a
continuance would be without merit because the hearing was not held within
three business days of the August 3rd notice; rather, it was held nine days
later on August 12th. See 23 Pa.C.S. § 6107(c)(2). Therefore, a continuance
would not be necessary pursuant to Subsection 6107(c).
Next, we turn to Appellant’s second claim, in which he alleges his
constitutional rights under the Fifth, Eighth, and Fourteenth Amendments
were violated because he was punished by the court’s final PFA order without
being informed of his right to counsel and his right to a continuance.
Appellant’s Brief at 7. His argument on this issue consists of one paragraph,
in which he baldly asserts:
A defendant, criminal or civil, has the right to due process
(especially when it considers depriving a person of property
without due process of law). This right is enforced upon the states
and guaranteed by the Fourteenth Amendment’s Due Process
Clause (“the sentencing process as well as the trial itself must
satisfy the requirements of the Due Process Clause”).
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Id.
We briefly note that constitutional challenges are a “question of law for
which our standard of review is de novo and our scope of review is plenary.”
Kaur v. Singh, 259 A.3d 505, 509 (Pa. Super. 2021) (citation omitted).
Appellant’s second argument fails for numerous reasons. First, like his
first issue, Appellant did not raise any allegation concerning his Fifth
Amendment rights in his 1925(b) statement or before the trial court. See
Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P. 302(a). As such, that part of his
argument was not properly preserved.
Second, while Appellant did raise claims pertaining to the Eighth and
Fourteenth Amendments in his Rule 1925(b) statement, he did not raise these
claims before the trial court. See Commonwealth v. Miller, 80 A.3d 806,
811 (Pa. Super. 2013) (holding constitutional challenge was waived where
raised for the first time in the Rule 1925(b) statement). As such, they are
waived. See Pa.R.A.P. 302(a).
Furthermore, even if these assertions were properly preserved for
review, Appellant’s argument in his appellate brief amounts to a mere
assertion that he has a “right to due process [which is] guaranteed by the
Fourteenth Amendment[.]” Appellant’s Brief at 7. Pursuant to Rule of
Appellate Procedure 2119(a), the argument section of an appellate brief must
provide “discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). As Appellant fails to develop any meaningful argument
regarding his constitutional concerns, we conclude Appellant’s claim would be
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deemed waived, as it is wholly inadequate to present an issue for our review.
See Butler v. Illes, 747 A.2d 943, 944 (Pa. Super. 2000) (“When issues are
not properly raised and developed in briefs, when briefs are wholly inadequate
to present specific issues for review, a court will not consider the merits
thereof.”) (citation omitted). Accordingly, Appellant has failed to properly
preserve his second argument.
In sum, Appellant has not established that the court erred in granting
the PFA petition. Therefore, we affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2022
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