Com. v. Ziemba, C. ( 2016 )

J-S18042-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER ZIEMBA :
:
Appellant : No. 910 MDA 2015
Appeal from the Judgment of Sentence January 14, 2015
in the Court of Common Pleas of Wyoming County,
Criminal Division, at No(s): CP-66-CR-0000324-2013
BEFORE: BOWES, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 16, 2016
Christopher Ziemba (Appellant) appeals from the judgment of
sentence entered after he was convicted of stalking, indecent exposure,
open lewdness, and two counts of disorderly conduct. After careful review,
we affirm.
Appellant and the victims, Bernard and Sandra Razawich, lived in
homes next door to each other in Lake Carey, Wyoming County,
Pennsylvania. While Bernard owned his home for many years, Appellant
purchased the home during the middle of a property dispute among various
neighbors who were all claiming to own parts of the same pieces of land
surrounding their homes and the lake. This dispute led to a quiet title action
among various neighbors, including the Razawiches and Appellant.
*Retired Senior Judge assigned to the Superior Court.
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One dispute in the quiet title action was over a piece of land where the
Razawiches wished to park a car, which was a piece of land that Appellant
was also claiming. Sandra testified that in May 2008, as retaliation for their
claim of what he believed was his land, Appellant was “digging a trench
around [their] car with his pants down [partway].” N.T., 10/21/2014, at 36.
She testified that she and Bernard could see “a good portion” of Appellant’s
buttocks. Id. at 37. They reported the incident to police, and Appellant pled
guilty to disorderly conduct as a result of the incident. In April 2009, after a
trial in the quiet title action, the trial court awarded Bernard a piece of
property that had a boathouse on it, but did not award him a second part of
the land he was claiming. Appellant was not awarded any land in that
litigation.
Following the verdict in the quiet title action, Appellant and the
Razawiches had a number of encounters. Sandra testified that on June 6,
2010, she was standing outside her house with her grandchildren, and they
saw Appellant sitting by the lake “showing … part of his buttocks again.” Id.
at 39. Shortly thereafter, Appellant “mooned” Bernard. Id. at 41. Sandra
further testified that later the same weekend, she saw Appellant “grabbing
his privates” at her. Id. at 43. She testified that he “grab[bed] them and
[shook] them” even though his shorts were on. Id. at 44. She testified that
“he was doing it to [her] and he still does it to her.” Id.
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Sandra then testified that in July of 2011, she saw large pieces of
debris on her property. Bernard checked the surveillance camera and it
showed Appellant throwing debris against their shed. Id. at 45. They
contacted police, and Appellant was prosecuted and found guilty of
harassment and disorderly conduct. Id. at 47. Bernard testified that he put
surveillance cameras on the property prior to the incident “to protect
[him]self from these strange things happening and what’s going on.” Id. at
170.
Sandra next testified about an incident that occurred on September 3,
2012, at around 1:00 a.m. She, Bernard, and several of their adult children
were sitting on the deck, and they saw Appellant “with his pants down.” Id.
at 54. Then, Appellant “started dancing” and “playing with himself.” Id.
They could see his “penis and testicles … just bouncing around.” Id. The
jury viewed surveillance video depicting this incident.1
Sandra testified that because of these incidents, she “cannot relax
when [Appellant is] around” and that she does not “know what he’s going to
do next.” Id. at 57. She is concerned about having her children and
grandchildren come to stay with her.
Appellant also testified about these incidents. He testified that he was
digging the trench in May 2008 because of the property dispute. He stated
1
That video is not included in the certified record.
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that his pants were loose and when they would fall down, he would pick
them up. Id. at 258. He claimed that the Razawiches filed charges in
connection with this incident to coerce him into giving up some of his
property in the dispute. Appellant testified that he did not remember the
June 6, 2010 incident. Appellant admitted to having made a “mistake” with
respect to placing the debris on the Razawiches’ property in 2011. Id. at
262. Finally, with respect to the weekend of September 3, 2012, Appellant
testified that he had a few drinks and was dancing for his girlfriend; but, he
never grabbed his penis or took off any clothing.
On May 30, 2013, a criminal complaint was filed against Appellant.
Specifically, he was charged with open lewdness, indecent exposure, and
two counts of disorderly conduct with respect to the September 3, 2012
incident. Additionally, he was charged with stalking for the course of
conduct that occurred between May 4, 2008 and September 3, 2012.
Appellant was tried before a jury on October 21-22, 2014, and the jury
returned a verdict of guilty on all five charges.
On January 14, 2015, Appellant was sentenced to an aggregate term
of eight to 23½ months of incarceration, with a concurrent term of 12
months of probation. Notably, for the stalking and indecent exposure
convictions, Appellant was given consecutive aggravated-range sentences.
At the close of the sentencing hearing, counsel for Appellant withdrew his
appearance, and attorney Christopher P. Arnone entered his appearance for
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Appellant. Appellant timely filed a post-sentence motion and also requested
leave to file a supplemental post-sentence motion. The trial court permitted
the filing of the supplemental post-sentence motion, which included
allegations of ineffective assistance of counsel. On April 30, 2015, the trial
court denied Appellant’s post-sentence motion.
On May 27, 2015, Appellant pro se filed a notice of appeal to this
Court. The trial court ordered Appellant to file a concise statement of errors
complained of on appeal, and Appellant complied. This Court then
remanded the case to conduct a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1988). After determining that Appellant did not
waive his right to counsel, the trial court appointed counsel to represent
Appellant on appeal and filed an opinion.
On appeal, Appellant sets forth four issues for our review.2 We begin
with Appellant’s contention that the trial court erred in denying his motion in
limine to exclude prior bad acts. Appellant’s Brief at 21-25.3 Appellant
2
The Commonwealth’s brief was initially due on November 16, 2015. On
November 17, 2015, the Commonwealth requested an extension of time to
file its brief. This Court gave the Commonwealth until December 16, 2015
to file its brief. The Commonwealth filed its brief on February 12, 2016
without explanation. Accordingly, the Commonwealth’s brief was not
considered in this case.
3
Appellant references the trial court’s order of August 19, 2014, which
denied his motion to exclude evidence of prior bad acts. While the order is
part of the certified record, the motion is not included.
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contends that the incidents that led to the stalking charge and conviction
constituted prior bad acts which the trial court should have excluded.
“The admissibility of evidence is a matter for the sound discretion of
the trial court. An appellate court may reverse only where the trial court
abused its discretion.” Commonwealth v. Urrutia, 653 A.2d 706, 709 (Pa.
Super. 1995).
“A person commits the crime of stalking when the person … engages
in a course of conduct or repeatedly commits acts toward another person …
under circumstances which demonstrate either an intent to place such other
person in reasonable fear of bodily injury or to cause substantial emotional
distress to such other person[.]” 18 Pa.C.S. § 2709.1(a)(1).
In Commonwealth v. Evans, [445 A.2d 1255 (Pa. Super.
1982),] the [C]ourt examined the admissibility of prior bad acts
to prove the existence of a course of conduct for harassment.
The court noted that proof of a course of conduct “undermines
the appellant’s contention that the reviewing court is precluded
from examining the testimony elicited regarding matters that
occurred prior to ... the date of the complained of conduct.” See
also Commonwealth v. Schnabel,[] 344 A.2d 896, 898 ([Pa.
Super.] 1975) (evidence of single act of misconduct insufficient
to establish “course of conduct” element of harassment);
Commonwealth v. Showalter, [] 332 A.2d 456, 458 ([Pa.
Super.] 1974) (evidence of prior violence against prosecutrix
admissible as demonstrating overall scheme of harassment).
Course of conduct by its very nature requires a showing of
a repetitive pattern of behavior. Therefore, where evidence of
prior bad acts is necessary to establish the pattern, the evidence
is admissible.
Urrutia, 653 A.2d at 709-10.
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Instantly, the Commonwealth could not prove a stalking charge
without the admission of the incidents Appellant sought to exclude. In fact,
under Appellant’s logic, the Commonwealth could never prove a stalking
case involving a course of conduct. These incidents were not “other acts”
inadmissible under these circumstances. Rather, these were the acts
themselves that led to the stalking charge against Appellant. Accordingly,
the trial court did not abuse its discretion in denying Appellant’s motion in
limine, and Appellant is not entitled to relief.
Appellant next sets forth a convoluted argument about purported
discovery violations by the Commonwealth. Appellant’s Brief at 25-27. He
claims first that the trial court erred in denying Appellant’s request for a new
trial based upon the Commonwealth’s withholding of discovery and material
pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Id. at 25. As a
corollary to this claim, Appellant argues that trial counsel was ineffective for
failing to procure all surveillance videos and photos that the Razawiches had
in their possession. Appellant acknowledges that “[n]either the [c]ourt
[d]ocket nor trial counsel’s file provided any written defense request for
informal discovery.” Id.4
4
Appellant also acknowledges that “the record is incomplete as to whether
trial counsel ever conferred with the Commonwealth attorney since nothing
appears on the record. The Commonwealth may be heard to argue that any
further discovery was waived for failure to make a formal request for
discovery.” Appellant’s Brief at 27.
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At trial, the following exchange occurred with respect to video
evidence:
[Defense Counsel:] OK, on the incident that you talked
about, June 6th of 2010 when you said your-[Appellant] was on
the dock, I believe.
[Bernard:] He was down on his waterfront on June-yeah.
[Defense Counsel:] Right, did you have any type of video
or pictures of that incident?
[Bernard:] I didn’t take any videos and save any videos of
that incident.
[Defense Counsel:] OK, and on this night on September 3rd
of 2012, I believe you had testified earlier that there were
approximately nine cameras in place on your residence?
[Bernard:] Approximately.
[Defense Counsel:] Maybe more, maybe less.
[Bernard:] There’s a couple more than that, I think.
[Defense Counsel:] And other than-this is the only video
that we have of that night’s events? Out of the nine cameras,
this is the one that you provided to the District Attorney’s Office,
correct?
[Bernard:] This is the video that I provided to the District
Attorney’s Office. I’m sorry I had so much blank space early on,
but we have all the eye witnesses that saw what went on versus
the video.
[Defense Counsel:] But this is the only video that was
provided.
[Bernard:] This is the only video that was provided. That’s
correct.
N.T., 10/21/2014, at 209-10.
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We set forth the following with respect to a Brady claim:
Under Brady[, supra,] and subsequent decisional law, a
prosecutor has an obligation to disclose all exculpatory
information material to the guilt or punishment of an accused,
including evidence of an impeachment nature. To establish a
Brady violation, an appellant must prove three elements: (1)
the evidence at issue is favorable to the accused, either because
it is exculpatory or because it impeaches; (2) the evidence was
suppressed by the prosecution, either willfully or inadvertently;
and (3) prejudice ensued.
Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa. 2012).
Based on the foregoing, it is clear there was no Brady violation.
Appellant offers no evidence that the Commonwealth had additional video or
photographic evidence; therefore, he fails to show that any evidence was
“suppressed by the prosecution, either willfully or inadvertently[.]” Id.Moreover, to the extent Appellant is claiming that counsel was ineffective for
failing to request this evidence, such a claim is not available to Appellant at
this juncture. See Commonwealth v. Holmes, 79 A.3d 862 (Pa. 2013)
(reaffirming that claims of ineffective assistance of trial counsel are deferred
for collateral review absent very narrow circumstances not relevant in this
case). Accordingly, we will not review Appellant’s ineffective-assistance-of-
counsel claim at this time.
We now turn to Appellant’s final two issues on appeal, both of which
implicate the discretionary aspects of his sentence. Generally, Appellant
argues that his aggravated range sentences are excessive and that the
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sentences that were imposed consecutively should have been run
concurrently. We address these claims mindful of the following:
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code…. [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Appellant timely filed a notice of appeal. Appellant did not object to
his sentence during the sentencing hearing; however, he did seek
reconsideration of his sentence in his post-sentence motion. However,
Appellant’s brief does not contain a Pa.R.A.P. 2119(f) concise statement.
“[W]hen the appellant has not included a Rule 2119(f) statement and the
appellee has not objected, this Court may ignore the omission and
determine if there is a substantial question that the sentence imposed was
not appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua
sponte, i.e., deny allowance of appeal.” Commonwealth v. Kiesel, 854
A.2d 530, 533 (Pa. Super. 2004). Because the Commonwealth’s brief was
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filed extraordinarily late and was not considered, we will exercise our
discretion to review Appellant’s claim challenging the discretionary aspects
of his sentence. Commonwealth v. Stewart, 867 A.2d 589 (Pa. Super.
2005) (ignoring the failure to include a Pa.R.A.P. 2119(f) statement where
the Commonwealth did not file a brief).
Appellant sets forth a number of arguments which can be narrowed
down to two categories: 1) the trial court abused its discretion by sentencing
him to consecutive rather than concurrent sentences; and 2) the trial court
considered improper factors in sentencing him in the aggravated range.
“When determining whether a substantial question has been raised, we
have focused upon whether the decision to sentence consecutively raises the
aggregate sentence to, what appears upon its face to be, an excessive level
in light of the criminal conduct in this case.” Commonwealth v. Zirkle, 107
A.3d 127, 133-34 (Pa. Super. 2014). Here, we cannot say that the
aggregate term of incarceration is excessive in light of the criminal conduct
in this case; thus, we do not find a substantial question on this basis.5
However, we have held an “assertion that the sentencing court
considered improper factors in placing the sentence in the aggravated
range” raises a substantial question. Accordingly, we will review Appellant’s
5
We also note that the trial court’s consecutive sentences were for the
stalking charge and the indecent exposure charge. The open lewdness count
and two counts of disorderly conduct all arose from the same incident that
led to the indecent exposure charge. The trial court sentenced Appellant
concurrently on those four counts.
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claims as to the factors the trial court considered in imposing an aggravated-
range sentence. Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa.
Super. 2005).
In reviewing the decision of the sentencing court, our
standard of review is well-settled:
Sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence
will not be disturbed on appeal absent a manifest
abuse of discretion. In this context, an abuse of
discretion is not shown merely by an error in
judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court
ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or
ill will, or arrived at a manifestly unreasonable
decision.
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super.
1999) (en banc) (quotations and citations omitted). A
sentencing court may consider any legal factor in determining
that a sentence in the aggravated range should be imposed. In
addition, the sentencing judge’s statement of reasons on the
record must reflect this consideration, and the sentencing
judge’s decision regarding the aggravation of a sentence will not
be disturbed absent a manifest abuse of discretion.
Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009) (some
citations and quotations omitted).
For both stalking and indecent exposure, the standard-range sentence
was probation to one month of incarceration. The aggravated range for each
was four months of incarceration. Thus, Appellant’s sentence of four to
twelve months of incarceration for stalking and four to 11½ months of
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incarceration for indecent exposure were both aggravated-range sentences.
The trial court offered the following rationale.
The court finds that the sentence in this matter is in the
aggravated range due to the following circumstances.
[Appellant] has at no time before this court shown any remorse
for the actions against the victims. Although he has apologized
to the court, the court has noted he has never apologized to the
victims in this matter. The court notes that [Appellant] has
continued a course of conduct against the victims over a period
of seven years. The court notes that during the trial, some of
the actions of [Appellant] were before minor children. The court
further notes that during the trial, [Appellant] continued the
actions against the victims during his period of bail. The court
further notes the serious nature of this offense and the effects
that this offense has had upon the victims and the court notes
that all of the above circumstances justify sentencing in the
aggravated range. The court further notes that any lesser of a
sentence in this matter would depreciate the seriousness of
[Appellant’s] actions.
N.T., 1/14/2015, at 16-17.
Appellant first argues that the trial court abused its discretion by
relying on the fact that the course of conduct lasted for seven years when
that factor was already taken into account as an element of the crime of
stalking. Appellant’s Brief at 17. With respect to stalking, our Court has
offered the following.
Each time a stalker commits an act, as part of an established
course of conduct, under circumstances demonstrating an intent
to place the victim in fear of bodily injury or to cause the victim
substantial emotional distress, the fear and emotional distress
increases. The repetitiveness of stalking acts is indicative of the
defendant’s unrelenting obsession with the victim and often
reveals an escalation of violence. For these reasons, it is
essential that each stalking act, which is included in an
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established course of conduct, be a separate offense, punishable
with an individual sentence.
Commonwealth v. Leach, 729 A.2d 608, 612-13 (Pa. Super. 1999).
Based on the foregoing, we cannot say that the trial court abused its
discretion by considering the fact that the stalking lasted seven years. By its
own definition, each act could have been prosecuted as a separate count of
stalking. Here, Appellant was prosecuted only once; thus, it was proper for
the trial court to look at the fact that numerous incidents of stalking
occurred over a seven-year timeframe. Accordingly, Appellant is not entitled
to relief on this basis.
Appellant next argues that the trial court abused its discretion by
relying on Appellant’s “perceived lack of remorse.” Appellant’s Brief at 17.
Specifically, the trial court noted that Appellant apologized to the court at
sentencing, but did not apologize directly to the victims at that time. Lack of
remorse has long been considered a proper sentencing factor. See, e.g.,
Commonwealth v. Begley, 780 A.2d 605 (Pa. 2001); Commonwealth v.
Miller, 724 A.2d 895, 902 (Pa. 1999) (“[T]he demeanor of a convicted
defendant, including his apparent lack of remorse, is a proper consideration
in fixing the sentence for a non-capital offense.”). Accordingly, we discern
no abuse of discretion on this basis.
Appellant also argues that the trial court abused its discretion by
concluding that some of these actions “were before minor children.”
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Appellant’s Brief at 20. While we agree with Appellant that the indecent
exposure incident did not occur before minor children, there was testimony
to support the fact that the June 6, 2010 incident did occur in front of some
of the Razawiches’ grandchildren. Accordingly, the record supports the trial
court’s consideration of this factor in sentencing and Appellant is not entitled
to relief on this basis.
Finally, Appellant argues that the record does not support the trial
court’s conclusion that Appellant “continued actions against the victims
during his period of bail.” Appellant’s Brief at 19. Instantly, Appellant’s bail
was set on June 27, 2013 and he was subject to the terms of bail, which
included no contact with the victims from that point forward.
Immediately after Appellant was convicted, the trial court heard
argument with respect to bail. N.T., 10/22/2014, at 345-54. The
Commonwealth argued for an increase in bail. Initially, the Commonwealth
conceded that there had been no bail violations, but then set forth the
following.
He hasn’t been charged with a violation for this, but
there’s an incident that occurred where we believe [Appellant]
was following Mr. Razawich down in Wilkes-Barre area because
of photograph of Mr. Razawich’s vehicle down there was sent to
Mr. Razawich’s employer with a letter signed by [Appellant],
claiming that this truck cut him off and that he was ta[]king a
picture of it and sending to his employer so there hasn’t been
any charge filed in that, but the Commonwealth believes that
that’s just further conduct. … He was obviously following Mr.
Razawich.
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Id. at 347.6
Appellant responded that he did not know who was driving the truck;
that it is his practice to write down the license plate number and send a
letter to an employer if he sees erratic driving; and that he lives a block
from where this incident occurred. Id. at 351-52.
In light of this information, we conclude that the trial court’s reliance
upon continued actions by Appellant against the Razawiches while on bail
was a proper factor to consider and the trial court did not abuse its
discretion. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2016
6
The transcript indicates that the truck showed the name of the company on
it.
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