Com. v. Burkhart, D., Jr. ( 2022 )

J-S01017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD ANTHONY BURKHART JR. :
:
Appellant : No. 810 MDA 2021
Appeal from the PCRA Order Entered May 20, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0007022-2018
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED: MARCH 29, 2022
Appellant Donald Anthony Burkhart Jr. appeals pro se from the order
dismissing his timely first Post Conviction Relief Act1 (PCRA) petition.
Appellant raises numerous claims of ineffective assistance of trial, direct
appeal, and PCRA counsel. Appellant also challenges the constitutionality of
the terroristic threats statute, the weight and sufficiency of the evidence, and
the legality of his sentence. Additionally, Appellant has filed three applications
for relief. We affirm the PCRA court’s order and deny Appellant’s applications
for relief.
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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A previous panel of this Court summarized the underlying facts of this
matter as follows:
On June 7, 2019, [Appellant] was found guilty of one count each
of terroristic threats graded as a felony of the third degree and
terroristic threats graded as a misdemeanor of the first degree.
The convictions relate to multiple threats [Appellant] made to
certain staff at UPMC [Pinnacle] Lititz hospital throughout the day
on November 20, 2018. [Appellant] was at the hospital that day
with his partner for the delivery of his child by means of a
scheduled cesarean section. [Appellant] first manifested his anger
to Dr. Jill Satorie and to his partner in the operating room when
he claimed a male anesthesiologist saw his partner’s “butt crack.”
After the delivery, [Appellant’s] agitated demeanor continued to
escalate[,] with [Appellant] and his partner continually arguing
with each other, [Appellant] discouraging an examination of his
partner that was recommended, threatening Dr. Satorie that his
partner might kick her and hurt her if the examination were
performed, [Appellant’s] asking Nurse Dana Mastromatteo when
they could perform a paternity test on the baby, explaining that
he wanted to know if the baby was a miracle or “something else”
because [Appellant] had a vasectomy[,] and [Appellant’s]
becoming agitated [and] confrontational about wanting to bring
his pit bull into the hospital room.
Later, when a decision was made to move the baby to the NICU
due to respiratory issues and the atmosphere in the room,
[Appellant] became particularly agitated and stated that he felt
like the hospital was kidnapping the baby. When a clinical nurse
manager, Eliza Zeidman, came to speak with [Appellant] about
the transfer of the baby, [Appellant] pointedly told her that he had
previously done time in jail and was not going to go back and then
he asked if she understood what he was saying. Nurse Zeidman
reported the threat to her boss who she believe[d] reported it to
security. [Appellant] was overheard on two other occasions
making similar statements about his time in jail over his temper
to a visitor and then a house supervisor.
[Appellant’s] anger seemed to peak over hospital staff refusing to
permit his partner to smoke in the room or to go outside to smoke.
He threatened Dr. Satorie that if anyone laid a hand on his partner
when she attempted to go outside to smoke he would become
angry, punch the wall in and hurt somebody. He informed both
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Dr. Satorie and Nurse Mastromatteo separately when discussing
the smoking issue that he was the president of a motorcycle gang
and that he would have that gang come to the hospital and make
things ugly[,] like he did on a prior occasion at a hospital in
Williamsport. In response to this final, specific threat, Dr. Satorie
and Nurse Mastromatteo contacted hospital administration[,]
which resulted in security and police being contacted and
responding. Due to the nature of the threats concerning the
motorcycle gang, a decision was made to put the hospital into a
lockdown situation. [Appellant] was arrested and the hospital
remained in lockdown from approximately 6:00 p.m. on
November 20, 201[8,] until sometime between 6:30 a.m. and
8:00 a.m. on November 21, 201[8].
[Following a three day jury trial, Appellant was convicted of two
counts of terroristic threats, one graded as a felony of the third
degree and the other graded as a misdemeanor of the second
degree.] After completion of a [pre-sentence investigation
report], [Appellant] was sentenced on August 26, 2019 to three
to seven years of incarceration [in a state correctional institution]
on the felony count of terroristic threats and a concurrent one to
five years of incarceration on the misdemeanor count of terroristic
threats. Appellant] filed a post[-]sentence motion on September
4, 2019, which was denied by Order dated October 25, 2019.
[Appellant] filed a [timely] notice of appeal on November 22,
2019.
Commonwealth v. Burkhart, 1916 MDA 2019, 2020 WL 6778766, at *1-2
(Pa. Super. filed Nov. 18, 2020) (unpublished mem.) (citation and footnote
omitted). We add that the trial court found that Appellant was ineligible for
the Recidivism Risk Reduction Incentive2 (RRRI) program based on his prior
convictions. See N.T. Sentencing Hr’g, 8/26/19, at 18.
On direct appeal, this Court affirmed Appellant’s judgment of sentence
in part, and reversed it in part. Specifically, this Court vacated Appellant’s
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2 61 Pa.C.S. §§ 4501-4512.
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sentence for the misdemeanor count of terroristic threats, concluding that it
should have merged with Appellant’s concurrent sentence for the felony
count.3 Burkhart, 2020 WL 6778766 at *7. Appellant did not file a petition
for allowance of appeal with our Supreme Court.
On February 8, 2021, Appellant filed a timely pro se PCRA petition,
asserting that both his trial and appellate counsel had been ineffective, and
raising other claims of trial court error. Pro Se PCRA Pet., 2/8/21, at 1-5. The
PCRA court subsequently appointed Christopher P. Lyden, Esq. (PCRA counsel)
to represent Appellant.4 On April 28, 2021, PCRA counsel filed a
Turner/Finley5 no-merit letter and a motion for leave to withdraw.
Subsequently, on April 30, 2021, the PCRA court filed its notice of intent to
dismiss Appellant’s PCRA petition without hearing pursuant to Pa.R.Crim.P.
907 and granted PCRA counsel’s motion to withdraw. Appellant filed, among
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3 This Court also vacated the conditions of Appellant’s sentence insofar as the
trial court was ordering mandatory conditions on Appellant’s state parole
instead of making recommendations to the Pennsylvania Board of Probation
and Parole (Parole Board). See Burkhart, 2020 WL 6778766 at *8.
4 After PCRA counsel was appointed, Appellant filed multiple pro se pleadings
with the PCRA court. The clerk of court accepted these pleadings for filing,
time stamped them, docketed them with the date of receipt, placed them in
the record, and forwarded copies to PCRA counsel and the Commonwealth.
See Pa.R.Crim.P. 576(A)(4).
5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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others, a pro se motion to proceed pro se on May 6, 2021, and a pro se
response to the Rule 907 notice on May 19, 2021.
On May 20, 2021, the PCRA court dismissed Appellant’s PCRA petition.
Appellant filed a timely notice of appeal and a timely court-ordered Pa.R.A.P.
1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing
Appellant’s issues.
On November 29, 2021, Appellant filed an application for relief with this
Court seeking immediate parole if this Court were to grant Appellant a new
trial. App. for Relief, 11/29/21, at 2. This Court denied that application
without prejudice to Appellant’s ability to seek relief in the appropriate forum
on December 9, 2021. Subsequently, on December 13, 2021, Appellant filed
a second application for relief, in which he requested that this Court vacate
his judgment of sentence, hold PCRA counsel in contempt, hold a
Commonwealth witness in contempt, and admonish the trial court and the
Commonwealth for purportedly violating the Rules of Criminal Procedure and
Evidence during Appellant’s trial. App. for Relief, 12/13/21, at 1-3. On
December 14, 2021, this Court denied Appellant’s second application for relief
without prejudice to raise any properly preserved issues with the merits panel.
On December 28, 2021, Appellant filed a third application for relief, in
which he requested that this Court grant his November 29, 2021 and
December 13, 2021 applications. App. for Relief, 12/28/21. On January 19,
2022, Appellant filed a fourth application for relief. Therein, Appellant
requested that this Court reverse his judgment of sentence and grant him a
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new trial, order his immediate parole, hold PCRA counsel in contempt, and
hold the Commonwealth’s witnesses in contempt. App. for Relief, 1/19/22, at
1-11. Appellant filed his fifth application for relief on March 4, 2022. In that
application, Appellant summarized the arguments raised in his brief and
requested that this Court grant him a new trial, or in the alternative, vacate
his judgment of sentence. App. for Relief, 3/4/22, at 1a-13.
Appellant raises numerous issues on appeal,6 including (1) ineffective
assistance by trial, appellate, and PCRA counsel; (2) violations of his due
process rights; (3) prosecutorial misconduct by the Commonwealth; (4) the
weight and the sufficiency of the evidence; (5) the constitutionality of the
terroristic threats statute, and (6) his eligibility for a RRRI sentence. See
Appellant’s Brief at 1-22.
As a preliminary matter, we consider whether Appellant’s brief
substantially complies with the briefing requirements set forth in the
Pennsylvania Rules of Appellate Procedure, which we may address sua sponte.
See Pa.R.A.P. 2114-2119 (explaining the specific requirements for each
section of an appellate brief); see also Commonwealth v. Wholaver, 903
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6 As explained below, Appellant’s brief does not include a statement of
questions involved. Therefore, we have summarized Appellant’s issues as
they are presented in the argument section of his brief. We have combined
Appellant’s tenth, eleventh, and twelfth claims regarding sufficiency of the
evidence regarding the intent to terrorize another. See Appellant’s Brief at
14-22.
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A.2d 1178, 1184 (Pa. 2006) (holding that an appellate court may find waiver
sua sponte).
When briefing the various issues that have been preserved, it is
an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with
citations to legal authorities. Pa.R.A.P. 2119(a), (b), (c).
Citations to authorities must articulate the principles for which
they are cited. Pa.R.A.P. 2119(b).
This Court will not act as counsel and will not develop arguments
on behalf of an appellant. Moreover, when defects in a brief
impede our ability to conduct meaningful appellate review, we
may dismiss the appeal entirely or find certain issues to be
waived. Pa.R.A.P. 2101.
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2012) (some
citations omitted); see also Commonwealth v. Dowling, 778 A.2d 683, 686
(Pa. Super. 2001) (stating that “[w]hen a court has to guess what issues an
appellant is appealing, that is not enough for meaningful review” (citations
omitted)).
Further, “our appellate rules do not allow incorporation by reference of
arguments contained in briefs filed with other tribunals, or briefs attached as
appendices, as a substitute for the proper presentation of arguments in the
body of the appellate brief.” Commonwealth v. Briggs, 12 A.3d 291, 343
(Pa. 2011). Our Supreme Court has held that when an appellant attempts to
present issues by incorporating by reference another document into his brief,
those issues are waived. Id.-7-
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“Although this Court is willing to liberally construe materials filed by a
pro se litigant, pro se status confers no special benefit upon the appellant.”
Commonwealth v. Vurimindi, 200 A.3d 1031, 1037-38 (Pa. Super. 2018)
(citation omitted). Also, this Court has explained that “it is not the
responsibility of this Court to scour the record to prove that an appellant has
raised an issue before the [PCRA] court, thereby preserving it for appellate
review.” Commonwealth v. Baker, 963 A.2d 495, 502 n.6 (Pa. Super.
2008) (citations omitted). Lastly, “boilerplate allegations and bald assertions
. . . cannot satisfy [an appellant’s] burden to prove that counsel was
ineffective.” Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011).
Here, Appellant’s brief does not contain a statement of questions
presented or a statement of the case indicating where Appellant raised his
instant claims before the PCRA court. See Pa.R.A.P. 2116, 2117(c). Likewise,
the argument section of Appellant’s brief does not specifically state where he
preserved his issues before the PCRA court. See Pa.R.A.P. 2119(e). Instead,
Appellant broadly asserts that he raised his issues in his various pro se
pleadings, which does not substantially comply with our Rules of Appellate
Procedure. See Pa.R.A.P. 2117(c), 2119(e); see also Baker, 963 A.2d at502 n.6 (explaining that “it is not the responsibility of this Court to scour the
record” to determine if an appellant has preserved an issue for appellate
review (citations omitted)).
In the argument section of his brief, Appellant presents bald assertions
concerning ineffective assistance of counsel and errors by both the trial court
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and PCRA court. See Paddy, 15 A.3d at 443 (stating that “boilerplate
allegations and bald assertions . . . cannot satisfy a petitioner’s burden to
prove that counsel was ineffective”). Although Appellant has cited legal
authorities, he has failed to develop his claims with pertinent discussion of
those authorities. See Pa.R.A.P. 2119(a); Hardy, 918 A.2d at 771.
Additionally, while Appellant describes alleged errors that occurred at trial, he
does not provide any citations to the record. See Pa.R.A.P. 2119(c); Hardy,
918 A.2d at 771.
Finally, we note that Appellant has filed eight addendums to his brief,
some of which contain additional argument, copies of the pro se pleadings he
filed with the PCRA court, or exhibits. Several times in his brief, Appellant
refers this Court to these addendums for a further discussion of the issues
presented in his brief. See, e.g., Appellant’s Brief at 1 (explaining that
Appellant’s claims of ineffective assistance of counsel are “raised briefly here,
but with more detail within the attached ‘Addendum A’, please review”).
Appellant’s use of these addendums to supplement his brief violates our
Supreme Court’s prohibition against incorporating by reference additional
documents into an appellate brief. See Briggs, 12 A.3d at 343.
Under these circumstances, we must conclude that Appellant has waived
his challenges to the trial court’s evidentiary rulings, the weight and
sufficiency of the evidence, the constitutionality of the terroristic threats
statute, and his claims of ineffective assistance of counsel. Therefore, he is
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not entitled to relief on these issues.7 See Pa.R.A.P. 2116, 2117, 2119;
Briggs, 12 A.3d at 343; Hardy, 918 A.2d at 771.
However, to the extent Appellant argues that the PCRA court
erroneously found him ineligible for the RRRI program, see Appellant’s Brief
at 5, that claim goes to the legality of Appellant’s sentence. See
Commonwealth v. Finnecy, 249 A.3d 903, 912 (Pa. 2021) (stating that a
claim that the trial court failed to impose a RRRI sentence on an eligible
defendant implicates the legality of the sentence); see also Commonwealth
v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017)). Therefore, we will address the
merits of that issue on appeal. See Finnecy, 249 A.3d at 908 (explaining
that a challenge to the legality of an RRRI sentence cannot be waived).
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7 The PCRA court suggested that remand may be necessary for the PCRA court
to consider Appellant’s claims of ineffectiveness by PCRA counsel. See PCRA
Ct. Op., 7/21/21, at 1-2, 6-7 (citing Commonwealth v. Betts, 240 A.3d 616(Pa. Super. 2020)). However, our review of Appellant’s pro se motion to
proceed pro se and response to the Rule 907 notice confirms that Appellant
did not raise any claims of ineffective assistance by PCRA counsel before the
PCRA court. Regardless, after this Court announced its decision in Betts, our
Supreme Court has held that a PCRA petitioner may “raise claims of PCRA
counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.”
Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (footnote
omitted).
Appellant has raised claims of PCRA counsel’s ineffectiveness for the first time
on appeal, however, for the reasons stated above, Appellant has not
developed his claims to the point where it is necessary to remand the matter
to the PCRA court for consideration of his claims. Cf. Bradley, 261 A.3d at
402 (explaining that “to advance a request for remand [for further
development of the record, an appellant] would be required to provide more
than mere boilerplate assertions of PCRA counsel’s ineffectiveness” (citation
and quotation marks omitted)).
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“Issues involving statutory interpretation like [RRRI eligibility] implicate
questions of law, for which our standard of review is de novo and our scope
of review is plenary.” Id. at 913 (citations omitted). We may affirm the PCRA
court on any grounds. See Commonwealth v. Wiley, 966 A.2d 1153, 1157
(Pa. Super. 2009) (stating this Court “may affirm the decision of the PCRA
court if there is any basis on the record to support the PCRA court’s action;
this is so even if we rely on a different basis in our decision to affirm” (citation
omitted and formatting altered)).
“The [RRRI] Act is intended to encourage eligible offenders to complete
Department of Corrections programs that are designed to reduce recidivism.
Eligible offenders may also be able to take advantage of a reduced sentence.”
Cullen-Doyle, 164 A.3d at 1240 (citations omitted). The RRRI Act requires
the trial court to determine at the time of sentencing whether the defendant
is an “eligible offender.” 61 Pa.C.S. § 4505(a); see also 42 Pa.C.S. §
9756(b.1) (requiring the sentencing court to impose a RRRI minimum
sentence when the defendant is eligible for one).
Section 4503, in relevant part, defines the persons eligible for RRRI as
follows:
A defendant or inmate convicted of a criminal offense who will be
committed to the custody of the [D]epartment [of Corrections]
and who meets all of the following eligibility requirements:
(1) Does not demonstrate a history of present or past violent
behavior.
* * *
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(3) Has not been found guilty of or previously convicted of or
adjudicated delinquent for or criminal attempt, criminal
solicitation or criminal conspiracy to commit . . . a personal
injury crime as defined under section 103 of the act of
November 24, 1998 (P.L. 882, No. 111),[8] known as the Crime
Victims Act, . . .
61 Pa.C.S. § 4503(1), (3).
For the purpose of Section 4503(3), a “personal injury crime” includes,
in relevant part, “[a]n act, attempt or threat to commit an act which would
constitute a misdemeanor or felony under . . . 18 Pa.C.S. Ch. 37 (relating to
robbery).” 18 P.S. § 11.103.
In Cullen-Doyle, our Supreme Court examined whether a defendant’s
single burglary conviction demonstrated a “history of present or past violent
behavior” for the purposes of Section 4503(1). Cullen-Doyle, 164 A.3d at
1240. Concluding that the legislative intent of the RRRI Act was to “offer
greater reform opportunities for first-time offenders than for repeat
offenders[,]” the Court held that the defendant’s “single, present conviction
for a violent crime does not constitute a history of violent behavior.” Id. at
1243-44 (citations omitted); see also Finnecy, 249 A.3d at 916 (holding that
“a single prior conviction for a non-enumerated crime demonstrating violent
behavior does not qualify as a history of past violent behavior under the
Section 4503[(1)] of the RRRI Act”).
Here, the PCRA court discussed Appellant’s RRRI eligibility in the context
of Appellant’s claim that trial counsel and appellate counsel were ineffective
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8 18 P.S. § 11.103.
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for failing to raise his RRRI eligibility.9 PCRA Ct. Op., 7/21/21, at 5. Regarding
the arguable merit prong, the PCRA court concluded:
According to 61 Pa.C.S.[] § 4503, an “eligible person” for the
[RRRI] program is one who does not demonstrate a history of past
or present violent behavior.
In this case, there is evidence of both past and present violent
behaviors. [Appellant] has three separate convictions of robbery
in Lycoming County in 1995 and 1996. He also has a charge of
simple assault which was reduced to harassment in Dauphin
County in 2004. Additionally, [Appellant’s] conviction for which
this PCRA arises was terroristic threats could also disqualify him
for RRRI. [Appellant] told several different hospital staff that he
was going to punch them. He also threatened to have his biker
gang come to the hospital and harm the workers. These facts also
show the [Appellant’s] tendency for violence which also eliminate
him from the RRRI program.
Id. (formatting altered).10
As noted by the PCRA court, Appellant has three prior convictions for
robbery. See N.T. Sentencing Hr’g, 8/26/19, at 15. Robbery is codified under
Chapter 37 of Title 18, and at a minimum constitutes a felony of the third
degree. See 18 Pa.C.S. § 3701(a)(1), (b). Robbery, therefore, is a personal
injury crime which renders Appellant ineligible for the RRRI program under
subsection 4503(3). See 61 Pa.C.S. § 4503(3); 18 P.S. § 11.103. Because
Appellant has more than one prior conviction for robbery, which is a personal
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9 To the extent appellant argues that trial counsel, appellate counsel, and
PCRA counsel were ineffective for failing to raise the issue of his RRRI
eligibility, those claims are waived for the reasons stated above.
10 The PCRA court also concluded that because Appellant presented this
ineffectiveness claim for the first time in his Rule 1925(b) statement, it was
waived. Id.
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injury crime, neither Finnecy nor Cullen-Doyle is applicable to the facts of
this case. Therefore, we agree with the PCRA court’s conclusion that Appellant
was not eligible for RRRI, albeit under subsection 4503(3) instead of
subsection 4503(1). See Wiley, 966 A.2d at 1157 (we may affirm the PCRA
court on any legal basis).
Applications for Relief
We must also address Appellant’s applications for relief. In his first
application for relief pending before this Court (his third overall), Appellant
requests that this Court grant his previously filed applications for relief. App.
for Relief, 12/28/21, at 2. This Court denied those applications on December
9, and 14, 2021, respectively. Therefore, we deny Appellant’s December 28,
2021 application for relief as moot.
In his second application for relief pending before this Court (his fourth
overall), Appellant makes several requests, including that this Court reverse
his judgment of sentence and order his immediate parole pending a new
trial.11 App. for Relief, 1/19/22, at 1-6, 11.
We address each request separately. Appellant raises two challenges to
the legality of his sentence. First, he argues that the trial erred in relying on
his prior convictions during sentencing, which resulted in an illegal sentence.
Id. at 2. Second, Appellant contends that because a previous panel of this
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11 In his application for relief, Appellant includes several claims that he has
already raised in his brief. Because we have already addressed those issues
and found them either waived or meritless, we do not address them here.
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Court vacated his concurrent sentence for the misdemeanor count of
terroristic threats on direct appeal, his “aggregated sentence” is now illegal.
Id. at 2-3.
“If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. Likewise, a sentence that exceeds
the statutory maximum is illegal.” Commonwealth v. Infante, 63 A.3d 358,
363 (Pa. Super. 2013) (citations omitted and formatting altered). While
challenges to the legality of sentence are cognizable on PCRA review, see
Finnecy, 249 A.3d at 912, challenges to the discretionary aspects of the
sentence are not. See Commonwealth v. Torres, 223 A.3d 715, 716 (Pa.
Super. 2019).
Appellant’s claim that the trial court erred in considering his prior
convictions, although framed as a challenge to the legality of his sentence,
actually goes to the discretionary aspects of his sentence. See
Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super. 2004) (holding
that the miscalculation of a defendant’s prior record score “constitutes a
challenge to the discretionary aspects of [a] sentence” (citation omitted)).
Therefore, this claim is not cognizable on PCRA review. See Torres, 223 A.3d
at 716.
To the extent Appellant argues that his present sentence is illegal after
a prior panel of this Court vacated his concurrent sentence, that claim is
meritless. Appellant was convicted of two counts of terroristic threats, one
graded as a felony of the third degree and the other as a misdemeanor of the
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first degree. The trial court imposed concurrent sentences of three to seven
years’ imprisonment and one to five years’ imprisonment, respectively. On
direct appeal, this Court held that Appellant’s misdemeanor conviction merged
with his felony conviction, and vacated the concurrent sentence of one to five
years for the misdemeanor charge. See Burkhart, 2020 WL 6778766 at *7.
Because the trial court imposed concurrent sentences, this Court’s decision
did not affect Appellant’s aggregate sentence of three to seven years. See
id. Further, the maximum possible sentence for a felony of the third degree
is seven years of imprisonment. See 18 Pa.C.S § 1103(3). Therefore,
because Appellant’s sentence does not exceed the lawful maximum, it is a
legal sentence. See id.
Next, Appellant asserts that the trial court lacked jurisdiction to impose
his sentence. App. for Relief, 1/19/22, at 3. “An objection to lack of subject
matter jurisdiction can never be waived . . . .” Commonwealth v. Jones,
929 A.2d 205, 208 (Pa. 2007) (citations omitted). A challenge to subject-
matter jurisdiction presents a question of law, so our standard of review is de
novo and our scope of review is plenary. Commonwealth v. Seiders, 11
A.3d 495, 496-97 (Pa. Super. 2010). There are the “two requirements for
subject matter jurisdiction as it relates to criminal defendants: the
competency of the court to hear the case, and the provision of formal notice
to the defendant of the crimes charged” that complies with the Sixth
Amendment of the United States Constitution and Article I, Section 9, of the
Pennsylvania Constitution. Jones, 929 A.2d at 210. “Controversies
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stemming from violations of the Crimes Code are entrusted to the original
jurisdiction of the courts of common pleas for resolution.” Seiders, 11 A.3d
at 497 (citation omitted).
Here, the Lancaster County Court of Common Pleas, Criminal Division,
was competent to hear Appellant’s case, which involved violations of the
Pennsylvania Crimes Code occurring in Lancaster County. See
Commonwealth v. Kohler, 811 A.2d 1046, 1050 (Pa. Super. 2002) (holding
that a county court of common pleas has jurisdiction over offenses that take
place within its borders). Further, the Commonwealth provided notice to the
Appellant of the charges in an information and subsequent amended
informations. See, e.g., Criminal Information, 12/18/18; Am. Criminal
Information, 6/3/19. Therefore, we conclude that the trial court had subject-
matter jurisdiction to try and sentence Appellant. See Jones, 929 A.2d at
210; Seiders, 11 A.3d at 497.
Appellant also asks this Court to order immediate parole. See App. for
Relief, 1/19/22, at 11. It is well settled that the Parole Board has exclusive
authority to parole convicted offenders serving a sentence of greater than two
years. See 61 Pa.C.S. § 6132(a); see also Commonwealth v. Miller, 770
A.2d 362, 363 (Pa. Super. 2001) (explaining when authority to parole
offenders lies with the Parole Board and when it lies with the trial court). Here,
the trial court imposed an aggregate sentence of three to seven years’
incarceration. Therefore, this Court lacks jurisdiction to order Appellant’s
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release on parole. See 61 Pa.C.S. § 6132(a). Accordingly, we deny his
application without prejudice to seek relief from the Parole Board.
Appellant next requests that this Court hold PCRA counsel in contempt
for allegedly failing to comply with a PCRA court order to turn over his file to
Appellant. App. for Relief, 1/19/22, at 6-11. Appellant also asks this Court
to hold the Commonwealth’s witnesses in contempt for allegedly committing
perjury during Appellant’s trial. Id. at 10.
Our Supreme Court has explained:
Courts possess an inherent power to enforce their orders by way
of the power of contempt. Generally, contempt can be criminal or
civil in nature, and depends on whether the core purpose of the
sanction imposed is to vindicate the authority of the court, in
which case the contempt is criminal, or whether the contempt is
to aid the beneficiary of the order being defied, in which case it is
civil. Civil contempt orders, in turn, usually occur as one of two
sub-species: compensatory or coercive. Compensatory civil
contempt, as its moniker suggests, involves compensation that is
paid to the party whom the contempt has harmed. On the other
hand, a coercive civil contempt citation . . . is intended to coerce
the disobedient party into compliance with the court’s order
through incarceration and/or monetary punishment.
Commonwealth v. Bowden, 838 A.2d 740, 760-61 (Pa. 2003) (citations and
footnote omitted).
Holding a person or entity in contempt, whether civil or criminal,
requires the court to find facts establishing the contempt. See, e.g.,
Commonwealth v. Moody, 125 A.3d 1, 5 n.4 (Pa. 2015) (explaining that
criminal contempt requires proof beyond reasonable doubt of four elements);
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Harcar v. Harcar, 982 A.2d 1230, 1234-35 (Pa. Super. 2009) (explaining
that the elements of civil contempt including a hearing and an adjudication).
“[I]t is not an appellate court’s function to engage in fact finding.”
BouSamra v. Excela Health, 210 A.3d 967, 979-80 (Pa. 2019) (citation
omitted). Furthermore, a trial court may enforce its own orders even after an
appeal has been taken. See Pa.R.A.P. 1701(b)(2).
Appellant requests that this Court hold his former PCRA counsel in
contempt for allegedly failing to comply with the PCRA court’s order to turn
over his file to Appellant. This Court may not engage in the fact finding
required to hold someone in contempt. See BouSamra, 210 A.3d at 979-80.
Further, because Appellant claims that PCRA counsel has violated a PCRA court
order, it is within the power of the PCRA court to enforce its order by holding
PCRA counsel in civil contempt after an appropriate hearing. See Bowden,
838 A.2d at 760-61; see also Pa.R.A.P. 1701(b)(2). Therefore we deny
Appellant’s request to hold PCRA counsel in contempt because this Court is
not the proper forum for a petition for contempt of a PCRA court order.
Likewise, we deny Appellant’s request to hold the Commonwealth’s
witnesses in contempt because this Court does not engage in fact finding, and
is therefore not the appropriate forum for his contempt petition.12 See
BouSamra, 210 A.3d at 979-80.
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12In any event, we note that, were we to hold PCRA counsel or any of the
Commonwealth’s witnesses in contempt without notice and an opportunity to
(Footnote Continued Next Page)
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Because we have concluded that all of the issues raised in Appellant’s
January 19, 2022 application for relief are waived, meritless, or seek redress
for issues that this Court has no authority to grant, we deny Appellant’s
January 19, 2022 application for relief.
In his third application for relief pending before this Court (his fifth
overall), Appellant repeats the arguments he raised in his brief and requests
that this Court grant him a new trial, or in the alternative, vacate his judgment
of sentence. App. for Relief, 3/4/22, at 1a-13. Because we have already
concluded that Appellant is not entitled to relief on these issues, we deny his
March 4, 2022 application for relief.
Conclusion
In sum, we conclude that all of the claims included in Appellant’s brief
are either waived or meritless. Therefore, we affirm the PCRA court’s order.
Further, we conclude that Appellant’s requests for relief are either moot,
meritless, or seek redress for issues that this Court has no authority to grant.
For these reasons we deny Appellant’s applications for relief.
Order affirmed. Applications for relief denied.
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be heard, it would violate those individuals’ rights to due process. See, e.g.,
Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013) (explaining that
“the basic elements of procedural due process are adequate notice, the
opportunity to be heard, and the chance to defend oneself before a fair and
impartial tribunal having jurisdiction over the case” (citations omitted)).
Therefore, even if we could engage in fact finding, we would decline to do so
on that basis.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2022
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