Crawford, R. v. Makozy, G. ( 2014 )


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  • J-A29012-14
    J-A29013-14
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
    ROSEMARY C. CRAWFORD,            ESQ., : IN THE SUPERIOR COURT OF
    TRUSTEE IN BANKRUPTCY,                 :      PENNSYLVANIA
    :
    Appellee              :
    :
    v.                          :
    :
    GREGORY M. MAKOZY,                     :
    :
    Appellant             : No. 26 WDA 2014
    Appeal from the Order December 20, 2013,
    Court of Common Pleas, Butler County,
    Civil Division at No. 2012-22108
    ROSEMARY C. CRAWFORD,            ESQ., : IN THE SUPERIOR COURT OF
    TRUSTEE IN BANKRUPTCY,                 :      PENNSYLVANIA
    :
    Appellee              :
    :
    v.                          :
    :
    GREGORY M. MAKOZY,                     :
    :
    Appellant             : No. 321 WDA 2014
    Appeal from the Order January 29, 2014,
    Court of Common Pleas, Butler County,
    Civil Division at No. 2012-22108
    BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.
    MEMORANDUM BY DONOHUE, J.:                     FILED DECEMBER 5, 2014
    Appellant, Gregory M. Makozy (“Makozy”), appeals from the order
    entered on December 23, 2013 in the Court of Common Pleas of Butler
    County compelling him to produce documents and answer questions to
    *Retired Senior Judge assigned to the Superior Court.
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    which he invoked his Fifth Amendment privilege against self-incrimination.
    Makozy also appeals from the order entered on January 29, 2014 in the
    Court of Common Pleas of Butler County that, inter alia, directed him to
    deposit $150,000 with the Sheriff of Butler County pursuant to Rule 3118(a)
    of the Pennsylvania Rules of Civil Procedure. After careful review, we affirm
    both of the trial court’s orders.
    The trial court summarized the relevant factual history of this case as
    follows:
    [Rosemary C. Crawford, Esquire (“Crawford”)] is the
    [t]rustee in [b]ankruptcy for one Maria Makozy
    [(“Mrs. Makozy”)]. Pursuant to that role, [Crawford]
    filed an [a]mended [c]omplaint against [Makozy],
    [Mrs.] Makozy’s husband, in the United States
    Bankruptcy Court for the Western District of
    Pennsylvania on February 28, 2011.         [Crawford]
    alleged that on April 18, 2008, a judgment was
    entered in the Court of Common Pleas of Butler
    County, Pennsylvania, against [Mrs.] Makozy and A-
    1 Mortgage Corporation, and in favor of John
    Sandherr [(“Mr. Sandherr”)].      [Crawford] alleged
    that [Makozy] fraudulently orchestrated a series of
    transactions intended to divest both his wife and A-1
    Mortgage Corporation of any assets against which
    Mr. Sandherr could execute his judgment. Prior to
    the commencement of trial, the parties reached a
    resolution, and a [s]tipulation for [e]ntry of
    [j]udgment was entered on August 28, 2012. In
    said stipulation, judgment was entered against
    [Makozy] and in favor of [Crawford] for $100,000.
    Trial Court Opinion, 3/25/14, at 1-2.
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    On November 7, 2012, Crawford filed a praecipe for judgment for the
    $100,000 in the Butler County Court of Common Pleas.              That same day,
    Crawford issued a subpoena to Makozy for a deposition in aid of execution in
    which she also requested that he produce specified documents. On February
    26, 2013, following numerous delays in scheduling his deposition, Makozy
    filed for bankruptcy in the United States Bankruptcy Court for the Southern
    District of Florida. On April 15, 2013, Makozy filed a pro se suggestion of
    bankruptcy in the Butler County Court of Common Pleas alleging, inter alia,
    that he had filed for bankruptcy in Florida. In his suggestion of bankruptcy,
    Makozy contended that Crawford was improperly trying to collect the
    $100,000 debt. See Suggestion of Bankruptcy, 4/15/13, ¶ 7. On April 18,
    2013, the trial court issued an order finding that the United States District
    Court for the Southern District of Florida dismissed Makozy’s bankruptcy
    proceeding and that his suggestion of bankruptcy was therefore moot. On
    May 29, 2014, Makozy filed a pro se motion to reconsider suggestion of
    bankruptcy in which he claimed that he refiled his bankruptcy case in Florida
    and conducted his first meeting of creditors pursuant to 11 U.S.C. § 341.
    Makozy   ultimately   withdrew   his   motion   to   reconsider    suggestion   of
    bankruptcy. See Trial Court Order, 6/26/13.
    On August 14, 2013, Crawford filed a motion for sanctions in which
    she sought relief pursuant to Rule 3118 of the Pennsylvania Rules of Civil
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    Procedure. Crawford asked the trial court to direct Makozy to deposit with
    the Sheriff of Butler County the funds that he received from the sale of his
    Blackstone Ridge property, so that she could levy upon those proceeds in
    satisfaction of the $100,000 judgment entered in her favor. Plaintiff’s Third
    Motion for Sanctions, 8/14/13, ¶ 10.    Crawford further requested that the
    trial court require Makozy to account for the funds from the sale of Makozy’s
    Blackstone Ridge property to the extent that he has spent or otherwise lost
    them. See 
    id. ¶ 11.
    On September 11, 2013, following the filing and disposition of several
    more motions, Crawford attempted to take Makozy’s deposition. However,
    in response to Crawford’s questions, Makozy invoked his Fifth Amendment
    privilege against self-incrimination.   Makozy likewise asserted his Fifth
    Amendment privilege for the documents that Crawford requested he produce
    in her notice of deposition dated August 15, 2013. On September 12, 2013,
    the trial court ordered Crawford and Makozy to provide it with a transcript of
    the deposition so that it could assess Makozy’s invocation of his Fifth
    Amendment privilege. On November 6, 2013, Makozy filed a brief in support
    of his invocation of the Fifth Amendment privilege in which he asserted that
    his answers to the questions Crawford asked during his deposition could
    subject him to prosecution for perjury to the extent that his answers differ
    from the information that he provided in his bankruptcy petition. See Brief
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    in Support of Defendant’s Invocation of His Fifth Amendment Privilege,
    11/6/13, at 3-12.
    On December 23, 2013, the trial court issued a memorandum opinion
    and order in which it directed Makozy to answer sixty of the 161 questions
    for which he invoked his Fifth Amendment privilege against self-incrimination
    and produce all of the documents that Crawford requested. On December
    30, 2013, Makozy filed a timely notice of appeal from this order at Superior
    Court docket number 26 WDA 2014.        On January 3, 2014, the trial court
    ordered Makozy to file a concise statement of the errors complained of on
    appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
    Procedure.    On January 8, 2014, Makozy timely filed his Rule 1925(b)
    statement.
    On January 23, 2014, the trial court held a hearing on Crawford’s
    motion for sanctions. On January 29, 2014, the trial court issued an order
    granting Crawford’s motion for sanctions in which it, inter alia, directed
    Makozy to deposit $150,000 with the Butler County Sheriff for Crawford to
    levy upon in satisfaction of the $100,000 judgment in her favor. This order
    also directed Makozy to disclose to the Sheriff of Butler County the
    whereabouts of all of his property located in Pennsylvania subject to levy
    and to return to the Sheriff any property that he removed from the county or
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    concealed for the purposes of avoiding execution.         This order further
    awarded counsel fees to Crawford’s attorney.
    On February 25, 2014, Makozy filed a timely notice of appeal from this
    order at Superior Court docket number 321 WDA 2014.         On February 26,
    2014, the trial court ordered Makozy to file a Rule 1925(b) statement in
    conjunction with this appeal.   On March 11, 2014, Makozy timely filed his
    Rule 1925(b) statement.
    In Makozy’s first appeal, at docket number 26 WDA 2014, Makozy
    raises the following issues:
    1.   Did the [c]ourt err in overruling [Makozy]’s
    [i]nvocation of his Fifth Amendment [p]rivilege at his
    September 11, 2013 deposition?
    2.    Did the [c]ourt err in ordering [Makozy] to
    answer the questions identified in the [c]ourt’s
    December 20, 2013[] [m]emorandum [o]pinion, in
    spite of his invocation of his Fifth Amendment
    [p]rivilege?
    3. Did the [c]ourt err in finding that the questions
    identified in the [c]ourt’s December 20, 2013[]
    [m]emorandum [o]pinion could not incriminate
    [Makozy] or furnish a link in the chain of evidence
    leading to [Makozy]’s prosecution in a crime?
    4. Did the [c]ourt err in finding that [Makozy]
    waived his Fifth Amendment [p]rivilege by testifying
    at his 11 U.S.C. § 341 [m]eeting of [c]reditors?
    5.    Did the [c]ourt err by determining that
    [Makozy]’s Fifth Amendment [p]rivilege does not
    protect the production of documents requested by
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    [Crawford] in her August 15, 2013[] [n]otice of
    [d]eposition?
    6. Did the [c]ourt err in requiring [Makozy] to
    produce documents at his deposition as requested by
    [Crawford] in her August 15, 2013[] [n]otice of
    [d]eposition?
    7. Did the [c]ourt err in finding that [Makozy] failed
    to meet his burden in establishing that the
    production of documents as requested by [Crawford]
    in her [n]otice of [d]eposition was protected by the
    Fifth Amendment of the United States Constitution?
    8. Did the [c]ourt err in ordering [Makozy] to attend
    a deposition on January 23, 2014, for the purpose of
    answering questions as provided for in the [c]ourt’s
    [m]emorandum [o]pinion, despite [Makozy] having
    invoked his Fifth Amendment [p]rivilege?
    Makozy’s Brief for Docket Number 26 WDA 2014 (hereinafter “Makozy’s Brief
    I”) at 4-5.1
    1
    We note that the December 23, 2013 order from which Makozy appeals is
    an interlocutory order. In the Statement of Jurisdiction section of Makozy’s
    appellate brief, he states that we have jurisdiction over this appeal as a
    collateral order pursuant to Rule 313(b) of the Pennsylvania Rules of
    Appellate Procedure. Neither Crawford nor the trial court contests the
    appealability of the December 23, 2013 order. Rule 313(b) defines a
    collateral order as follows:
    A collateral order is an order [1] separable from and
    collateral to the main cause of action [2] where the
    right involved is too important to be denied review
    and [3] the question presented is such that if review
    is postponed until final judgment in the case, the
    claim will be irreparably lost.
    Pa.R.A.P. 313(b). The December 23, 2013 order is separable from and
    collateral to the main cause of action because we can assess the invocation
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    We begin by addressing the first, second, third, and eighth issues of
    Makozy’s first appeal, as each involves the trial court’s decision to overrule
    his invocation of the Fifth Amendment privilege against self-incrimination at
    his September 11, 2013 deposition.          See Makozy’s Brief I at 4-5.
    “Generally, on review of an order concerning discovery, an appellate court
    applies an abuse of discretion standard.”      McNeil v. Jordan, 
    894 A.2d 1260
    , 1268 (Pa. 2006); see also Commonwealth v. Long, 
    625 A.2d 630
    ,
    634 (Pa. 1993) (“A trial court’s ruling regarding the application of the
    privilege will not be disturbed on appeal absent a showing of an abuse of
    discretion.”).   “An abuse of discretion is not merely an error of judgment,
    but occurs only where 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 o[f] the record.”        Bratic v.
    of Makozy’s Fifth Amendment rights without considering the merits of the
    underlying case. See Ben v. Schwartz, 
    729 A.2d 547
    , 551-52 (Pa. 1999)
    (explaining that an order is “separable” from the main cause of action if it is
    capable of review without considering the underlying merits of the case).
    The December 23, 2013 order also involves a right, specifically Makozy’s
    Fifth Amendment privilege against self-incrimination, that is too important to
    be denied review. See Melvin v. Doe, 
    836 A.2d 42
    , 47 (Pa. 2003) (stating
    that an issue is too important to be denied review where it involves “rights
    deeply rooted in public policy going beyond the particular litigation at
    hand”). Furthermore, the appeal of the December 23, 2013 order presents
    a claim that would be irreparably lost if review were postponed until final
    judgment in the case because there is no effective remedy for protecting
    Makozy once he waives his privilege against self-incrimination. For these
    reasons, we conclude that the December 20, 2013 order is collateral and
    appealable as of right under Rule 313(b).
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    Rubendall, 
    99 A.3d 1
    , 7 (Pa. 2014) (quoting Zappala v. Brandolini Prop.
    Mgmt., Inc., 
    909 A.2d 1272
    , 1283 (Pa. 2006)).
    Makozy argues that the trial court erred by compelling him to answer
    sixty of the 161 questions for which he invoked his Fifth Amendment
    privilege.   Makozy’s Brief I at 10-13.     Makozy claims that these sixty
    questions “on their face suggest that [he] diverted assets to third parties” in
    an attempt to avoid disclosing them in his bankruptcy proceedings. 
    Id. at 11.
    Makozy asserts that a response could conceivably result in him being
    subject to perjury charges.     
    Id. Thus, Makozy
    contends that “[i]t is
    impossible to say that these questions cannot have any tendency to
    implicate Makozy in a criminal prosecution or that they don’t potentially
    furnish a link in the chain of evidence needed to convict.” 
    Id. at 10.
    The Fifth Amendment to the United States Constitution, as applied to
    the states via the Fourteenth Amendment, provides that no person “shall be
    compelled in any criminal case to be a witness against himself,” and Article
    1, Section 9 of the Pennsylvania Constitution holds that the accused in a
    criminal prosecution “cannot be compelled to give evidence against himself.”
    U.S. Const. amend. V; Pa. Const. art. 1, § 9.3. The privilege against self-
    incrimination is “accorded liberal construction in favor of the right it was
    intended to secure,” and may be claimed when a witness “has reasonable
    cause to apprehend danger from a direct answer.” Hoffman v. U.S., 341
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    U.S. 479, 486 (1951). Importantly, “[f]ederal standards govern invocation
    of the privilege against self-incrimination in a state court proceeding.”
    Estate of Baehr, 
    596 A.2d 803
    , 804 n.1 (Pa. Super. 1991).
    The Fifth Amendment privilege against self-
    incrimination protects any person, an accused or a
    witness, from being compelled to speak against his
    penal interest. See Malloy v. Hogan, 
    378 U.S. 1
    []
    (1964).     “The Amendment not only protects the
    individual against being involuntarily called as a
    witness against himself in a criminal prosecution but
    also privileges him not to answer official questions
    put to him in any other proceeding, civil or criminal,
    formal or informal, where the answers might
    incriminate him in future criminal proceedings.”
    Lefkowitz v. Turley, 
    414 U.S. 70
    , 77[] (1973). To
    claim the privilege, a person must be “confronted by
    substantial and ‘real,’ and not merely trifling or
    imaginary, hazards of incrimination.” [U.S.] v. Doe,
    
    465 U.S. 605
    , 614, [n.13] (1984) (quoting
    Marchetti v. [U.S.] 
    390 U.S. 39
    , 53[] (1968)).
    The privilege extends “not only ‘to answers that
    would in themselves support a conviction ... but
    likewise embraces those which would furnish a link in
    the chain of evidence needed to prosecute the
    claimant.’” Ohio v. Reiner, 
    532 U.S. 17
    [] (March
    19, 2001) (per curiam) (citing Hoffman v. [U.S.],
    
    341 U.S. 479
    , 486[] (1951)) (alterations in original).
    “[I]t need only be evident from the implications of
    the question, in the setting in which it is asked, that
    a responsive answer to the question or an
    explanation of why it cannot be answered might be
    dangerous because injurious disclosure could result.”
    
    Id. (citing Hoffman,
    341 U.S. at 486-87[]). In
    other words, “the claim of privilege cannot be
    sustained if the fear of self-incrimination rests on
    ‘remote and speculative possibilities’; the privilege
    protects only against ‘real dangers.’”       [U.S.] v.
    Jones, 
    703 F.2d 473
    , 476 (10th Cir. 1983) (quoting
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    Zicarelli   v.   [N.J.    State     Comm’n           of
    Investigation], 
    406 U.S. 472
    , 480[] (1964)).
    S.E.C. v. Leach, 
    156 F. Supp. 2d 491
    , 493-94 (E.D. Pa. 2001). However,
    “[i]nvocation of the privilege must be upheld unless it is perfectly clear, from
    a careful consideration of all the circumstances of the case, that the witness
    is mistaken, and that the answer(s) cannot possibly have such tendency to
    incriminate.”   In re Gi Yeong Nam, 
    245 B.R. 216
    , 225 (Bankr. E.D. Pa.
    2000).
    We conclude that the trial court did not abuse its discretion in
    compelling Makozy to answer the sixty questions at issue.          We find no
    support in the record for Makozy’s contention that each of the sixty
    questions at issue on their face suggests that he diverted assets to avoid
    disclosing them in his bankruptcy proceedings.       Here, many of the sixty
    questions at issue involve topics including, inter alia, Makozy’s marital
    status, the identities and residences of his children, whether his family has
    access to credit cards, whether his family purchased plane tickets and rented
    trucks, his employment status and earnings, and whether his family has
    twitter accounts.    See Trial Court Opinion, 3/25/14, at 17-19.         These
    questions simply do not, “on their face” as Makozy contends, suggest that he
    diverted assets to third parties in an attempt to avoid disclosing them in his
    bankruptcy proceedings.
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    Additionally, for the remaining questions that do not involve menial
    family or personal matters, Makozy has provided us with no basis with which
    to overturn the trial court’s decision. The transcript of Makozy’s September
    11, 2013 deposition is not part of the certified record.2 Therefore, we do not
    know the context in which Crawford asked any of the sixty questions at issue
    and thus, we do not have any reason to conclude that the trial court erred in
    finding that Makozy would not incriminate himself by answering these
    questions.   The trial court reviewed the transcript of Makozy’s September
    2
    In its March 25, 2014 memorandum opinion, the trial court indicated that
    it ordered a copy of the transcript of Makozy’s September 11, 2013
    deposition and that it reviewed the transcript to determine if Makozy
    properly invoked the Fifth Amendment privilege against self-incrimination.
    See Trial Court Opinion, 3/25/14, at 4, 11-19. However, we have no
    explanation for why this deposition is not part of the certified record on
    appeal. Our Court has held that,
    “[i]t is black letter law in this jurisdiction that an
    appellate court cannot consider anything which is not
    part of the record in this case.” Bennyhoff v.
    Pappert, 
    790 A.2d 313
    , 318 (Pa. Super. 2001)
    (citation omitted). Any document which is not part
    of the official certified record is considered to be
    non-existent, which deficiency may not be remedied
    by inclusion in the reproduced record. Id.; Pa.R.A.P.
    1921. It is the responsibility of the appellant to
    provide a complete record to the appellate court on
    appeal,    including    transcription  of    deposition
    testimony. McNeal v. Eaton Corp., 
    806 A.2d 899
                 (Pa. Super. 2002).
    Eichman v. McKeon, 
    824 A.2d 305
    , 316 (Pa. Super. 2003). Presumably,
    Makozy could have supplemented the record with his September 11, 2013
    deposition transcript, see Pa.R.A.P. 1926(b)(2), but he did not.
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    11, 2013 deposition and made a determination that Makozy would not
    incriminate himself by answering the sixty questions at issue and we decline
    to overturn that determination. See Trial Court Opinion, 3/25/14, at 17-19.
    Next, we address the fifth, sixth, and seventh issues of Makozy’s first
    appeal, as each involves the trial court’s decision to compel him to produce
    documents that Crawford requested in her notice of deposition dated August
    15, 2013.     Makozy’s Brief I at 17-18.     Makozy argues that the Fifth
    Amendment privilege against self-incrimination extends “to the production of
    documents under circumstances where such production amounts to a
    testimonial communication.” 
    Id. at 18.
    The United States Supreme Court has stated the following in regards
    to the invocation of the Fifth Amendment privilege against self-incrimination
    and the production of documents:
    As we noted in Fisher, the Fifth Amendment
    protects the person asserting the privilege only from
    compelled self-incrimination. [Fisher v. U.S., 
    425 U.S. 391
    , 396 (1976)]. Where the preparation of
    business records is voluntary, no compulsion is
    present. A subpoena that demands production of
    documents “does not compel oral testimony; nor
    would it ordinarily compel the taxpayer to restate,
    repeat, or affirm the truth of the contents of the
    documents sought.” [Id. at 409]. Applying this
    reasoning in Fisher, we stated:
    “[T]he Fifth Amendment would not be violated
    by the fact alone that the papers on their face
    might incriminate the taxpayer, for the
    privilege protects a person only against being
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    incriminated by his own compelled testimonial
    communications. The accountant’s workpapers
    are not the taxpayer’s.         They were not
    prepared by the taxpayer, and they contain no
    testimonial declarations by him. Furthermore,
    as far as this record demonstrates, the
    preparation of all of the papers sought in these
    cases was wholly voluntary, and they cannot
    be said to contain compelled testimonial
    evidence, either of the taxpayers or of anyone
    else. The taxpayer cannot avoid compliance
    with the subpoena merely by asserting that the
    item of evidence which he is required to
    produce     contains     incriminating   writing,
    whether his own or that of someone else.”
    U.S. v. Doe, 
    465 U.S. 605
    , 610-11 (1984) (quoting 
    Fisher, 425 U.S. at 409-10
    ) (emphasis in original; citations, quotations, and footnote omitted).
    The Supreme Court in Fisher further explained,
    The act of producing evidence in response to a
    subpoena nevertheless has communicative aspects
    of its own, wholly aside from the contents of the
    papers produced. Compliance with the subpoena
    tacitly concedes the existence of the papers
    demanded and their possession or control by the
    taxpayer. It also would indicate the taxpayer’s belief
    that the papers are those described in the subpoena.
    Curcio v. U.S., 
    354 U.S. 118
    , 125[] (1957). The
    elements of compulsion are clearly present, but the
    more difficult issues are whether the tacit averments
    of the taxpayer are both “testimonial” and
    “incriminating” for purposes of applying the Fifth
    Amendment. These questions perhaps do not lend
    themselves to categorical answers; their resolution
    may instead depend on the facts and circumstances
    of particular cases or classes thereof.
    
    Fisher, 425 U.S. at 410
    .
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    We conclude that the trial court did not abuse its discretion in
    compelling Makozy to produce the documents that Crawford requested in her
    notice of deposition dated August 15, 2013. In this case, Makozy complains
    about the trial court ordering him to produce documents, including, “tax
    returns, titles, bills of sale, deeds, stocks, profit and loss statements … ,
    evidence of safe deposit boxes or other depositories, trust agreements, bank
    statements, credit card account statements and documents relating to any
    trips by Makozy to Las Vegas or another gambling destination.”      Makozy’s
    Brief I at 17-18.   However, Makozy provides no explanation, either in his
    appellate brief or his brief in support of the invocation of his Fifth
    Amendment privilege against self-incrimination, as to how any of these
    documents are “testimonial” and “incriminating” within the facts and
    circumstances of this particular case.      See id.; Brief in Support of
    Defendant’s Invocation of His Fifth Amendment Privilege, 11/6/13, at 12-13.
    Rather, Makozy only asserts that by ordering him to produce the documents
    at issue, it would effectively be compelling him to admit that the documents
    existed, were in his possession or control, and were authentic.         See
    Makozy’s Brief I at 17-18. However, without any further explanation of how
    producing each document could potentially incriminate him, we have no
    basis upon which to afford Makozy relief.      Cf. Nat’l Life Ins. Co. v.
    Hartford Acc. & Indem. Co., 
    615 F.2d 595
    , 598 (3d Cir. 1980) (holding
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    that “a witness cannot relieve himself of the duty to answer questions that
    may be put to him by a mere blanket invocation of the privilege”).
    Accordingly, we conclude that no relief is due on these issues.
    Next, we address the fourth issue that Makozy raises in his first
    appeal. Makozy argues that the trial court erred when it determined that he
    waived his Fifth Amendment privilege against self-incrimination by testifying
    at his 11 U.S.C. § 341 meeting of creditors in regards to the following
    questions:
    1.   Prior to the time the Bankruptcy Petition was
    filed on April 11, 2013, you owned a property
    on Dobson Road in Adams Township, Butler
    County, Pennsylvania, is that correct?
    2.   Do you recall a discussion regarding the
    Dobson Road property at the time of your
    meeting with creditors?
    3.   Do you recall testifying at the meeting of
    creditors that you gave this property to your
    son, Gregory, in the year preceding the
    bankruptcy filing?
    4.   Did Gregory pay you any money for the
    property on Dobson Road?
    5.   Do you agree that your son, Gregory, paid you
    nothing in consideration for the conveyance of
    that real estate?
    Makozy’s Brief I at 13. Makozy asserts that he did not waive his privilege by
    testifying to these questions at his section 341 meeting of creditors because
    his bankruptcy case in Florida and the instant matter are not two parts of
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    the same proceeding, as the trial court contends.      See 
    id. at 13-17;
    see
    also Trial Court Opinion, 12/23/13, at 10-12 (citing In re Gi Yeong 
    Nam, 245 B.R. at 228-32
    ).     Makozy further argues that “it is possible that the
    information solicited at [his] meeting of creditors could be different than that
    given during his deposition, and thus, the invocation of the privilege is
    proper[.]” Makozy’s Brief I at 17.
    We conclude that the trial court did not abuse its discretion by
    ordering Makozy to answer the five questions at issue.3 The certified record
    on appeal contains neither the transcript of Makozy’s September 11, 2013
    deposition nor a transcript relating to what he disclosed at his section 341
    meeting of creditors on May 16, 2013. The only indication we have of what
    transpired at Makozy’s section 341 meeting of creditors in regards to the
    Dobson Road property is a brief passage of the transcript from that meeting
    that Crawford’s counsel read for the trial court. See N.T., 11/27/13, at 13-
    14. The passage that Crawford’s counsel read to the trial court states the
    following:
    [Makozy]: I had a piece of land that I gave him, my
    son, had to be a year ago, something like that. I
    went and I gave it to him. It wasn’t worth any kind
    of money. Him and his friends, they were going to
    3
    In his appellate brief, Makozy contends that “the trial [c]ourt does not
    seem to disagree that [these five] questions are potentially incriminating.”
    Makozy’s Brief I at 13. However, the trial court did not indicate in its opinion
    whether or not it believed the five questions at issue to be incriminating.
    See Trial Court Opinion, 3/25/14, at 10-12.
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    go and spend the summer building the home on it.
    The land was valued I think at 2,000 bucks,
    something like that.
    Question by the trustee: Valued by whom?
    [Makozy]: By Butler County.
    
    Id. Other than
    this passage, we have no information regarding what
    questions Makozy answered at his meeting of creditors or how he answered
    them, despite the fact Makozy testified extensively about the Dobson Road
    property. See 
    id. Thus, for
    question one, we do not know whether Makozy
    testified to exactly when he owned the Dobson Road property.       We only
    know that he stated that he gave it to his son about year prior to the
    meeting of creditors. 
    Id. Questions two
    and three only ask Makozy whether
    he remembers testifying to certain subject matter during the meeting of
    creditors and thus any answer to those questions will not incriminate him.
    See 
    id. For questions
    four and five, we only know that Makozy testified at
    the meeting of creditors that he “gave” the property to his son.   See 
    id. Because of
    the limited testimony we have, however, we have no detailed
    information regarding the consideration (if any) paid to obtain the Dobson
    Road property.   See 
    id. We likewise
    do not know the context in which
    Crawford asked Makozy the five questions at issue because we do not have
    the deposition transcripts. Makozy has provided no explanation as to how
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    answering each question could incriminate him – other than a general
    assertion that the answers might differ from the information he provided at
    his meeting of creditors. See 
    id. at 13-17.
    Thus, Makozy has provided this
    Court with no basis by which we could determine that he could face criminal
    prosecution by answering these questions.      Because the invocation of the
    Fifth Amendment privilege against self-incrimination cannot rest on “remote
    and speculative possibilities,” we cannot say that the trial court abused its
    discretion by compelling Makozy to answer these questions.4          Cf. 
    Leach, 156 F. Supp. 2d at 493-94
    (quoting 
    Jones, 703 F.2d at 476
    ).
    In Makozy’s second appeal, at docket number 321 WDA 2014, Makozy
    raises the following issues for review:
    1. Did the [c]ourt err in [o]rdering [Makozy] to
    deposit with the Sheriff $150,000.00 when there was
    no evidence that such funds presently exist?
    2. Did the [c]ourt err in [o]rdering [Makozy] to
    disclose to the Sheriff of Butler County the
    whereabouts of property of [Makozy], within the
    State of Pennsylvania, that can be subject to Levy,
    when there is no evidence of record that such
    property exists?
    3. Did the Court violate [Makozy]’s Fifth Amendment
    [r]ights by ordering him to disclose to the Sheriff of
    4
    We note that our rationale in reaching this conclusion differs from that of
    the trial court. However, “[w]e can affirm the [trial] court’s decision if there
    is any basis to support it, even if we rely on different grounds to affirm.”
    Commonwealth v. McLaurin, 
    45 A.3d 1131
    , 1138 (Pa. Super. 2012),
    appeal denied, 
    65 A.3d 413
    (Pa. 2013).
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    Butler County the whereabouts of property         of
    [Makozy], within the State of Pennsylvania?
    4. Did the [c]ourt err in [o]rdering [Makozy] to
    return to the County of Butler any property, cash,
    investments or personalty that has been removed
    from the County or concealed for the purposes of
    avoiding execution, and to deliver the same to the
    Sheriff, when there is no evidence of record that
    such property exists?
    5. Did the Court violate [Makozy]’s Fifth Amendment
    Rights by ordering him to return to the County of
    Butler any property, cash, investments or personalty
    that has been removed from the County or concealed
    for the purposes of avoiding execution, and to
    deliver the same to the Sheriff?
    Makozy’s Brief for Docket Number 321 WDA 2014 (hereinafter “Makozy’s
    Brief II”) at 6-7.5
    We begin by addressing the first, second, and fourth issues of
    Makozy’s second appeal, as each involves the trial court’s order directing
    him to deposit $150,000 with the Sheriff of Butler County, disclose to the
    5
    Makozy raised an issue concerning the trial court’s award of fees to
    Crawford’s counsel in his Rule 1925(b) statement for his second appeal, but
    failed to include the issue in the statement of questions involved section of
    his appellate brief. See Rule 1925(b) Statement, 7/26/13, ¶ 2; Makozy’s
    Brief II at 6-7. “No question will be considered unless it is stated in the
    statement of questions involved or is fairly suggested thereby.” Pa.R.A.P.
    2116(a). As a result, Makozy has waived this claim. Waiver is further
    supported by the fact that Makozy included no argument on the issue in his
    appellate brief. See Makozy’s Brief II at 11-19. Where an “[a]ppellant has
    cited no legal authorities nor developed any meaningful analysis, we find
    [the] issue waived for lack of development.” Commonwealth v. McLaurin,
    
    45 A.3d 1131
    , 1139 (Pa. Super. 2012), appeal denied, 
    65 A.3d 413
    (Pa.
    2013) (citing Pa.R.A.P. 2119(a)); see also Commonwealth v. Johnson,
    
    985 A.2d 915
    , 924 (Pa. 2009)).
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    Sheriff all of his property located in Pennsylvania subject to levy, and return
    to the Sheriff any property he removed from Butler County or concealed for
    purposes of avoiding execution pursuant to Rule 3118(a) of the Pennsylvania
    Rules of Civil Procedure. 
    Id. at 11-14.
    Makozy argues that the trial court
    erred by directing him to deposit with the Butler County Sheriff $150,000 of
    a June 25, 2012 $505,915.38 wire transfer to Makozy Real Estate, LLC from
    the sale of Makozy’s Blackstone Ridge property because there is no evidence
    that such funds exist. 
    Id. Makozy likewise
    avers that the trial court erred
    by ordering him to disclose to the Sheriff of Butler County the whereabouts
    of his property within Pennsylvania subject to execution and to return
    property to the Sheriff that he removed from Butler County or concealed for
    the purposes of avoiding execution.    
    Id. at 13-14.
       Makozy contends that
    the trial court did not possess evidence that any such property existed. 
    Id. “When reviewing
    the grant or denial of Rule 3118 supplementary
    relief, this Court’s review is limited to determining whether the trial court
    abused its discretion.” Marshall Ruby and Sons v. Delta Min. Co., 
    702 A.2d 860
    , 862 (Pa. Super. 1997). Rule 3118(a) provides as follows:
    Rule 3118. Supplementary Relief in Aid of Execution
    (a) On petition of the plaintiff, after notice and
    hearing, the court in which a judgment has been
    entered may, before or after the issuance of a writ of
    execution, enter an order against any party or
    person
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    (1) enjoining the negotiation, transfer,
    assignment or other disposition of any
    security, document of title, pawn ticket,
    instrument, mortgage, or document
    representing any property interest of the
    defendant subject to execution;
    (2) enjoining the transfer, removal,
    conveyance,     assignment    or   other
    disposition of property of the defendant
    subject to execution;
    (3) directing the defendant or any other
    party or person to take such action as
    the court may direct to preserve
    collateral security for property of the
    defendant levied upon or attached, or
    any security interest levied upon or
    attached;
    (4) directing the disclosure to the sheriff
    of the whereabouts of property of the
    defendant;
    (5) directing that property of the
    defendant which has been removed from
    the county or concealed for the purpose
    of avoiding execution shall be delivered
    to the sheriff or made available for
    execution; and
    (6) granting such other relief as may be
    deemed necessary and appropriate.
    Pa.R.Civ.P. 3118(a).   Our Supreme Court has held that “Rule 3118
    authorizes summary proceedings in aid of execution for the purpose of
    maintaining the status quo of the judgment debtor’s property and may be
    used only for that purpose.” Greater Valley Terminal Corp. v. Goodman,
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    202 A.2d 89
    , 94 (Pa. 1964).      To demonstrate entitlement to relief, the
    movant must establish: (1) the existence of an underlying judgment; and
    (2) property of the debtor subject to execution. Marshall Ruby and 
    Sons, 702 A.2d at 862
    .
    We conclude that the trial court did not abuse its discretion in ordering
    Makozy to deposit $150,000 with the Sheriff of Butler County. Here, there is
    no dispute of the existence of the underlying $100,000 judgment against
    Makozy in Crawford’s favor.      Makozy only complains that there is no
    evidence of the existence of the $150,000.     However, the certified record
    reveals that Makozy produced a JP Morgan Chase Bank account statement
    showing a June 25, 2012 wire transfer for $505,915.38 from PNC Bank to
    Makozy Real Estate, LLC for the sale of Makozy’s Blackstone Ridge property.
    Plaintiff’s Third Motion for Sanctions, 8/14/13, Exhibit A.   That statement
    further reflects a $500,000 withdrawal from the account on July 2, 2012.
    Makozy has not averred, testified, or provided any evidence suggesting that
    he is no longer in possession of the $500,000.     Thus, the certified record
    supports the trial court’s conclusion that Makozy has sufficient funds to
    deposit $150,000 with the Sheriff of Butler County.
    We further conclude that the trial court did not abuse its discretion by
    ordering Makozy to disclose to the Sheriff of Butler County the whereabouts
    of his property within Pennsylvania subject to execution and to return
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    property to the Sheriff that he removed from Butler County or concealed for
    the purposes of avoiding execution.      As we established above, the record
    supports the trial court’s finding that there was a wire transfer for
    $505,915.38 to Makozy Real Estate, LLC on June 25, 2012, a subsequent
    $500,000 withdrawal from the account on July 2, 2012, and that Makozy has
    not made any showing that he is no longer in possession of the funds. See
    supra, p. 22. We take no umbrage with the trial court issuing this order in
    an attempt to aid Crawford in determining where the $500,000 is currently
    located (either in cash or purchases).    While we acknowledge that “[o]nly
    property the title to which is clearly in the judgment-debtor is subject to the
    terms of [Rule 3118(a)],” Greater Valley 
    Terminal, 202 A.2d at 92
    , the
    trial court’s order is not directed to any specific piece of property other than
    $150,000 of the $505,915.38 wire transfer for which there is record
    evidence. Additionally, Crawford’s motion for sanctions requests relief in the
    form of an accounting for the proceeds of the $505,915.38 should Makozy’s
    claim that he is not in possession of those funds turn out to be true.
    Plaintiff’s Third Motion for Sanctions, 8/14/13, ¶ 11. Because only Makozy
    possesses the knowledge of where the $500,000 went following its
    withdrawal on July 2, 2012, we find no abuse of discretion in the trial court’s
    direction to Makozy to disclose the whereabouts of his property located
    within Pennsylvania subject to levy or ordering him to return to the Sheriff
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    any property he removed from Butler County or concealed for the purpose of
    avoiding execution.
    Finally, we address the third and fifth issues that Makozy raises in his
    second appeal. Each of these issues involves Makozy’s claim that the trial
    court violated his Fifth Amendment rights by ordering him to disclose to the
    Sheriff of Butler County the whereabouts of his property within Pennsylvania
    subject to execution and to return property to the Sheriff that he removed
    from Butler County or concealed for the purposes of avoiding execution.
    Makozy’s Brief II at 16-19. Makozy asserts that by ordering him to provide
    this information, the trial court would be compelling to admit to the
    existence of property that he may not have disclosed on his bankruptcy
    petition, which would therefore lead to perjury charges. 
    Id. We conclude
    that Makozy has waived this issue on appeal for failing to
    properly raise it before the trial court. Makozy was aware that Crawford, in
    her motion for sanctions, was seeking relief pursuant to Rule 3118(a). See
    Plaintiff’s Third Motion for Sanctions, 8/14/13, ¶¶ 1-11.      Makozy never
    raised his Fifth Amendment Privilege against self-incrimination in regards to
    Crawford seeking relief pursuant to Rule 3118(a) in either his response to
    Crawford’s third motion for sanctions or the hearings in regards to that
    motion. See Response to Plaintiff’s Third Motion for Sanctions, 8/14/13, ¶¶
    1-11; N.T., 8/14/13, at 2-11; N.T., 11/27/13, at 2-27; N.T.; 1/23/14, at 2-
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    27. However, Makozy argues that he preserved his Fifth Amendment claims
    by raising them in his Rule 1925(b) statement. Makozy’s Brief II at 16. Our
    Supreme Court has held that
    in general, a Rule 1925(b) statement cannot
    resurrect an otherwise untimely claim or objection.
    Because issues not raised in the lower court are
    waived and cannot be raised for the first time on
    appeal, a 1925(b) statement can therefore never be
    used to raise a claim in the first instance. Pa.R.A.P.
    302.    Pennsylvania law is clear that claims and
    objections that are not timely made are waived.
    Steiner v. Markel, 
    968 A.2d 1253
    , 1257 (Pa. 2009). Accordingly, because
    Makozy did not raise these Fifth Amendment claims until his Rule 1925(b)
    statement, he has waived them.
    Orders affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/5/2014
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