Com. v. Emerick, G.

J-S44008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY ALLEN EMERICK :
:
Appellant : No. 1001 MDA 2022
Appeal from the Order Entered June 17, 2022
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-MD-0000237-2022,
FC-2021-20900-AB
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 4, 2023
Gregory Emerick appeals from the judgment of sentence entered after
Emerick was found guilty of contempt of a Protection from Abuse Order
(“PFA”) for a third time. We affirm.
On October 13, 2021, Trisha Batko filed a petition for PFA against
Emerick and the trial court issued a temporary PFA that same day. A month
later, a final PFA was entered for a term of one year. The PFA excluded Emerick
from Batko’s residence, a mobile home on Pinecrest Drive in the Pinecrest
mobile housing development in Williamsport. Within a short time, Emerick was
charged with contempt of the PFA. On December 27, 2021, the trial court
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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found Emerick in contempt following an admission, and sentenced Emerick to
time-served – twenty-five days’ imprisonment – and other conditions.
In March 2022, Emerick was again charged with contempt of the PFA.
The next month, again following an admission, the trial court sentenced
Emerick to time-served – fourteen days’ imprisonment – and extended the
expiration date of the PFA to April 4, 2025.
On May 11, 2022, Pennsylvania State Police Trooper Nickolous Marple
was dispatched to Pinecrest Drive for a report of a vehicle striking a
pedestrian. Emerick was found to be operating the vehicle and was in the area
of Batko’s home. Relevant to the case at hand, a criminal complaint was filed
charging Emerick with a violation of the PFA for being “in the area of Pinecrest
Drive for no legitimate purpose” despite the PFA barring him “from having any
contact with Batko …”.
The PFA hearing was continued once, by agreement with the
Commonwealth, due to the pending criminal charges arising from the car
accident.
On June 17, 2022, prior to the PFA contempt hearing, counsel for the
parties met in chambers and defense counsel requested another continuance
due to the pending criminal charges. The trial court denied the request, placing
its reasons on the record as follows:
So as long as we’re on the record, the record should reflect the
parties, in chambers, met with the [c]ourt. [Defense counsel]
asked that this matter be continued because there are criminal
charges pending against her client, not this victim. And it’s my
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understanding he’s charged with aggravated assault by vehicle
because on this particular day while he was at the park it’s alleged
that he struck a person with his car. And the Commonwealth is
comfortable there’s not a double jeopardy issue[]. That the facts
and theories of both are completely separate and that [your
concern, defense counsel], is that you didn’t want your client
subject to cross-examination or waiving his Fifth Amendment
privilege by testifying at this hearing, and that you were asking
effectively that this be continued until disposition of the criminal
case.
Since that’s just had a preliminary hearing and it’s likely to be
more than a year before it goes to trial, and because the facts are
separate and distinct that request for continuance was denied.
N.T., 6/17/22, at 6.
An evidentiary hearing was then held, at which the Commonwealth
presented the testimony of Idona Kinney, Ronald McMahon, Sr., and Batko.
Emerick offered no testimony. The trial court thoroughly and accurately
summarized the testimony as follows:
[] Kinney testified that she is [Batko]’s next-door neighbor, and
that she knew [Emerick] well from when he lived with [Batko] as
a couple. She explained that she saw [Emerick] drive a four-door
silver Chevrolet Cruz past [Batko]’s house or the street [Batko]
lives on five times between 12:30 p.m. and 4:30 p.m. on May 11,
2022.
…
The Commonwealth next called Ronald McMahon, Sr., [] Kinney's
boyfriend who was also present on May 11, 2022[,] in the mobile
home next to [Batko’s trailer]. [McMahon] testified that he
observed [Emerick] in the silver vehicle at [] 4:30 p.m., and 6:30
p.m.
[Batko] was the final witness. [Batko] first testified regarding her
residence and the active PFA. [Batko] explained that, at
approximately 2:30 p.m. or 2:45 p.m. on May 11, 2022, she was
sitting inside of her residence when she observed a person in her
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yard. [Batko] initially assumed it was a member of the
development's property management team, but the person then
attempted to put a key in her front door and gain access to her
residence. [Batko] explained that when this occurred she went to
the front door, held the lock shut, and called 911. [Batko] did not
see this person's face, but could tell it was a thin man. [Batko]
testified that [Emerick] was the only person other than herself
who might have a key to her residence; she explained that when
[Emerick] was originally served with the PFA he returned to the
residence and "grabbed certain things," and soon thereafter
[Batko] noticed a house key was missing.
[Batko] explained that the police arrived and told her that there
were no particular actions they could take at that point, but they
promised to keep someone in the area [since she had to get her
children off the bus, but otherwise] advised her to stay in the
house and keep the doors locked. [Batko] testified that at
approximately 4:20 p.m., there was a knock at the door, at which
time her daughter looked out the window and said there was a
person "crouched down by the side of the house and it looked like
her dad," [Emerick]. [Batko] once again called the police, and
[her] daughter explained to them what she saw.
On redirect, all three witnesses testified that they had not
observed [Emerick] being social with anyone in the mobile
housing development in the past and did not know any other
reason he might be there, and in response to a question by the
[c]ourt [Batko] stated that [Emerick] did not have any family in
the development.
Trial Court Opinion, 8/24/22, at 4-5 (footnotes omitted).
After closing arguments, the trial court found Emerick in contempt of
the PFA, explicitly noting that the court found the Commonwealth's witnesses
credible and that it was clear Emerick had engaged in stalking behavior by
slowly driving through the neighborhood over several hours that day, and it
was also likely Emerick who was at Batko’s trailer that day. The court then
sentenced Emerick to six months’ incarceration. The court further extended
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the expiration date of the PFA through June 17, 2025, and expanded the zone
from which Emerick is excluded to not only Batko’s home, but also the entire
Pinecrest mobile housing development. This timely appeal followed.1
On July 11, 2022, the trial court ordered Emerick to file a concise
statement of errors complained of on appeal within 21 days, as prescribed by
Pa.R.A.P. 1925(b)(3). Emerick did not timely comply.
On August 5, 2022, Emerick filed an application to file a concise
statement nunc pro tunc, with a concise statement attached. On August 24,
2022, the trial court issued an opinion pursuant to 1925(a), addressing the
issues from the August 5, 2022 concise statement.
Usually, the untimely filing of a court-ordered Rule 1925(b) statement
would result in waiver of all issues. See Commonwealth v. Burton, 973 A.2d
428, 430 (Pa. Super. 2009). However, a criminal defense attorney's filing of
an untimely statement is per se ineffectiveness, for which an appellant is
entitled to prompt relief. See id. at 433. Where counsel filed a late concise
statement, and the court addressed the merits of the appellant's claims in an
opinion we need not remand. See id.____________________________________________
1 Emerick filed a timely notice of appeal on July 6, 2022. Although the notice
of appeal was timestamped by the clerk of courts on July 6, 2022, at the time
of docketing statement review, there was no entry on the trial court docket
for the notice of appeal. See Pa.R.Crim.P. 114(C)(1) (“Docket entries
promptly shall be made”). Accordingly, this Court directed the trial court to
amend the trial court docket to include an entry for the notice of appeal, and
to transmit a corrected copy of the docket to this Court. The trial court
transmitted a copy of the corrected trial court docket on October 25, 2022.
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Here, Emerick’s counsel filed a late concise statement. In the late filing,
counsel conceded that the statement was late, but asked the court to accept
it nunc pro tunc, stating she was unable to timely file the requested statement
due to a COVID-19 diagnosis. Despite the untimely nature of the concise
statement, the trial court chose to write an opinion. The trial court wrote an
opinion only as to the issues presented in the concise statement. In his August
5th concise statement, Emerick raised the following issues:
a. [Emerick] avers that [the trial court] erred by denying his
motion for continuance of the [PFA] Contempt hearing. []
b. [Emerick] submits that his Due Process rights have been
violated in the fact that he was unable to present his testimony in
his defense to the contempt allegations presented by the
Commonwealth due to his 5th Amendment protections against
self-incrimination.
c. [Emerick] avers that even though [the] Commonwealth[]
argued that this Contempt hearing had a different victim, it is
[Emerick’s] position that the underlying set of facts and
circumstances are the same as in the pending criminal matters
and testifying in his defense would expose him to self-
incrimination in his pending criminal matters. []
d. [Emerick] avers that the trial court abused its discretion when
finding that he was in contempt of the [PFA] Order and the
sentence[] imposed of six (6) months of incarceration and $1,000
fine in violation of his Due Process Right afforded to him by the
United States Constitution.
1925(b) Concise Statement, 8/5/22.
While the trial court wrote an opinion in response to the above issues,
it is clear the trial court found the issues presented too vague for it to clearly
identify the issues Emerick wished to raise on appeal. See Trial Court Opinion,
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8/24/22, at 10 (addressing the first three issues together as they appear to
be related; stating Emerick’s fourth issue “appears to be” a hybrid sufficiency
of the evidence and discretionary aspects of sentence challenge; and finding
that Emerick framed his issues as Fifth Amendment violations, but that his
issues seem to also be related to his right to testify, guaranteed by Article I,
Section 9 of the Pennsylvania Constitution).
Since the concise statement did not sufficiently identify the issues for
the trial court, the trial court was forced to guess as to the issues Emerick
wished to raise on appeal. “Even if the trial court correctly guessed the issues
Appellant brings before this Court, the vagueness of Appellant’s Concise
Statement renders all issues raised therein waived.” Commonwealth v.
Heggins, 809 A.2d 908, 912 (Pa. Super. 2002) (citation omitted).
Even if not waived for this reason, we would nevertheless find Emerick’s
issues waived for other reasons and/or without merit. Notably, on appeal,
Emerick changed his issues to:
1. Whether the court denied [Emerick] his constitutional right to
testify on his own behalf pursuant to the Fifth Amendment of the
United States Constitution when they denied his request for a
continuance where he had criminal charges pending for a related
incident.
2. Whether the sentencing court abused its discretion by imposing
a manifestly excessive sentence without sufficiently considering
the fundamental norms underlying the sentencing process.
Appellant’s Brief, at 8.
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Emerick’s actual argument devoted to his first issue is only one
paragraph in total, and is no more than undeveloped assertions. See Lackner
v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006) (“[A]rguments which are not
appropriately developed are waived”). Emerick fails to cite to any pertinent
authority in support of his arguments. See Pa.R.A.P. 2119(a) (stating that the
argument shall include “such discussion and citation of authorities as are
deemed pertinent.”). While he initially cites to some authorities, the
authorities do not support his actual propositions. Instead, Emerick states
some general case law for reference to the general pronouncements of the
Fifth Amendment. Importantly, Emerick does not develop any argument to
support his contention that he was “compelled” to testify at the PFA contempt
hearing. See Commonwealth v. Lewis, 598 A.2d 975 (Pa. 1991) (Criminal
defendant is not required to testify in his own defense and is therefore entitled
to a “no adverse inference” jury instruction). Further, we agree with the trial
court that while Emerick framed his issue as a Fifth Amendment violation in
his 1925(b) concise statement and in his issue statement in his brief, his
extremely limited argument alternates between a challenge to not only his
Fifth Amendment privilege against self-incrimination but also his right to
testify, which is guaranteed by Article I, Section 9 of the Pennsylvania
Constitution.
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Although we find this issue waived for multiple reasons, in as much as
Emerick is challenging the trial court’s denial of his request for continuance,
we find Emerick’s claim does not entitle him to relief.
We adhere to the following standard of review:
Because a trial court has broad discretion regarding whether a
request for continuance should be granted, we will not disturb its
decision absent an apparent abuse of that discretion. An abuse of
discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the results of partiality, prejudice, bias, or ill-
will.
In re J.K., 825 A.2d 1277, 1280 (Pa. Super. 2003) (citations omitted).
The trial court adequately explained its reasoning in denying Emerick’s
request for a continuance while the criminal charges from the car accident
remained outstanding. See N.T., 6/17/22, at 6; Trial Court Opinion, 8/24/22,
at 10-13. Specifically, the court found the cases were sufficiently distinct
because the cases involve different victims, and the facts and theories of both
cases are completely separate. See id. Further, the court noted that since the
other case was only just past the preliminary hearing stage, it could be at
least another year, if not more, before that matter went to trial. See id. We
cannot conclude the trial court abused its discretion in refusing to grant a
continuance.
In his second issue, Emerick argues the trial court abused its discretion
by imposing a manifestly excessive and unduly harsh sentence. Emerick
concedes this is a challenge to the discretionary aspects of his sentence. “A
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challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)
(citation omitted).
Emerick could only preserve a claim to the discretionary aspects of the
court’s sentence if he noted a specific objection at the sentencing hearing or
in a post-sentence motion to modify. See id. Emerick did not object to any
aspects of his sentence at the sentencing hearing, see N.T., 6/17/22, at 38-
40, and did not file any post-sentence motions, let alone one challenging his
sentence.
Nor did Emerick preserve a discretionary aspects claim in his 1925(b)
statement. Regarding his sentence, Emerick argued “the trial court abused its
discretion when finding that he was in contempt of the Protection from Abuse
Order and the sentence imposed of six (6) months of incarceration and $ 1,000
fine in violation of his Due Process Right afforded to him by the United States
Constitution.” 1925(b) Concise Statement, 8/5/22, at ¶ d. Again, the trial
court noted its confusion about what kind of claim Emerick was actually
attempting to raise. See Trial Court Opinion, 8/24/22, at 13. Emerick asserted
his discretionary aspects claim for the first time in his appellate brief, and
accompanying Rule 2119(f) statement. As such, this claim is waived for this
reason as well. See Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super.
2013) (“Objections to the discretionary aspects of a sentence are generally
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waived if they are not raised at the sentencing hearing or in a motion to modify
the sentence imposed.”); see also Commonwealth v. Cartrette, 83 A.3d
1030, 1042-43 (Pa. Super. 2013) (en banc) (concluding substantial question
was waived for failing to raise it at sentencing or in post-sentence motion).
Even if not waived, we discern no abuse of the court’s discretion in the
sentence imposed. Here, in its opinion on appeal, the trial court stated:
With regard to sentencing, the [c]ourt sentenced [Emerick] within
the legally permissible maximums. It is abundantly clear that
[Emerick]’s conduct warranted the imposition of a maximum
penalty. This was the third time [Emerick] violated the PFA in a
six-month span. Although there is no such thing as a "minor" PFA
violation, here [Emerick] drove to [Batko]’s residence and
attempted to break in; to describe this conduct as extremely
serious would be an understatement. [Emerick]’s repeated history
of violating the PFA demonstrates that short, time-served
sentences are no deterrent at all; the Court gave [Emerick]
multiple chances to comply with the PFA, and for the third time in
less than half a year he chose not to. The imposition of the
maximum permissible penalty was therefore appropriate, as
nothing less would have deterred [Emerick] from violating the PFA
and served the ultimate goal of attempting to ensure [Batko]’s
safety.
Trial Court Opinion, 8/24/22, at 14. Emerick has failed to establish the 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.
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As we find Emerick’s issues are waived and/or without merit, we affirm
the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2023
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