Com. v. Scatena, G.

J-A22008-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GINO FRANK SCATENA :
:
Appellant : No. 1040 WDA 2022
Appeal from the Order Entered August 25, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000233-2022
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: November 22, 2023
Gino Frank Scatena appeals from the order denying his motion to
dismiss pursuant to Pa.R.Crim.P. 578. We affirm.
The trial court set forth the history of this matter as follows:
On July 7, 2021, Juliette Murcko filed for and obtained a
Temporary Protection from Abuse (“TPFA”) order against
[Appellant] at FD No. 21-1151. Ms. Murcko sought this TPFA
Order following an incident that occurred on July 5, 2021, where
it was alleged that [Appellant] threw and damaged Ms. Murcko’s
iPhone after repeatedly engaging in other stalking and harassing
behavior following their breakup.
Shortly after the issuance of the TPFA Order, an Indirect
Criminal Contempt (“ICC”) complaint was filed. The ICC complaint
was . . . filed to address the incident that was alleged to have
occurred on July 22, 2021, where [Appellant] repeatedly drove
past Ms. Murcko’s place of business while revving the engine on
his motorcycle to make his presence known.
The ICC hearing was scheduled to take place on August 25,
2021 before Judge Eaton in the Family Division. . . .
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On August 25, 2021, [Appellant and Ms. Murcko] consented
to the entry of a Final Protection from Abuse (“PFA”) Order in lieu
of a hearing. The order was intended to resolve the pending ICC
complaint. The order stated that it was entered into “without
admission of guilt by [Appellant] and to avoid cost and
inconvenience of litigation.” It was set to expire on August 24,
2022. An Addendum to this [PFA] Order, drafted by the parties’
respective attorneys, further stated that “all incidents of contempt
filed or occurring prior to this date are dismissed” and that it “shall
not be considered a violation of this order if [Appellant] is driving
on public roadways or traveling on public thoroughfares or
sidewalks.”
Trial Court Opinion, 11/9/22, at 3-4 (cleaned up). Notably, no representative
from the Commonwealth was involved in the negotiation or execution of any
portion of the PFA Order or Addendum.
On October 14, 2021, slightly less than two months after entry of the
PFA Order, Ms. Murcko contacted police and informed them that Appellant
drove his Ford Explorer repeatedly around the block where she operated her
dentistry practice. Approximately a week later, on October 20, 2021, Ms.
Murcko again notified law enforcement that Appellant rode his motorcycle in
front of her business several times while revving his engine, and then parked
at a bar across the street.
Appellant was consequently charged in the instant matter with one
count each of stalking and criminal mischief, as well as two counts of
harassment. Critically, the criminal information stated that the allegation of
criminal mischief was said to have taken place on July 5, 2021, when Appellant
broke Ms. Murcko’s iPhone, prior to her obtaining the TPFA Order. The
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allegations of stalking and harassment involved a course of conduct and
purportedly occurred from July 5 through October 20, 2021.
Appellant filed an omnibus pretrial motion pursuant to Pa.R.Crim.P. 578,
seeking dismissal of the criminal charges on multiple grounds, including
double jeopardy. The trial court entertained argument from both Appellant
and the Commonwealth. Several days later, the court denied Appellant’s
motion. This timely appeal followed.1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Whether double jeopardy principles require dismissal of the
pending criminal charges because those incidents of
misconduct were previously subject to prosecution and
dismissed in a consent order arising out of the criminal
contempt proceedings?
II. Whether the coordinate jurisdiction doctrine rule required the
trial judge to follow the order issued by Judge Eaton dismissing
the indirect criminal contempt action via consent order[?]
III. Whether as a matter of public policy the parties are required to
follow a negotiated resolution of indirect criminal contempt
charges for a PFA, because in the alternative legal counsel
would never resolve a PFA claim if criminal charges can be
brought for that same conduct[?]
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1 We observe that “[s]ince the trial court did not make a finding that
Appellant’s motion was frivolous, the interlocutory order was immediately
appealable as a collateral order.” Commonwealth v. Goods, 265 A.3d 662,
663 n.1 (Pa. Super. 2021).
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Appellant’s brief at 4 (cleaned up).2
In his first issue, Appellant raises two separate but related legal
principles: double jeopardy and collateral estoppel. Regarding the former,
we have stated that “[a]n appeal grounded in double jeopardy raises a
question of constitutional law. This Court’s scope of review in making a
determination on a question of law is, as always, plenary. As with all questions
of law, the appellate standard of review is de novo.” Commonwealth v.
Miller, 198 A.3d 1187, 1191 (Pa.Super. 2018) (cleaned up). In the same
vein, application of collateral estoppel constitutes a question of law, with the
same standard and scope of review. See Commonwealth v. Brockington-
Winchester, 205 A.3d 1279, 1283 (Pa.Super. 2019).
When reviewing a court’s denial to grant relief on double jeopardy
grounds, we bear in mind the following legal principles:
The Double Jeopardy Clause protects a defendant in a
criminal proceeding against multiple punishments or repeated
prosecutions for the same offense. Among its purposes are to
preserve the finality and integrity of judgments and to deny to the
prosecution another opportunity to supply evidence which it failed
to muster in the first proceeding.
Insofar as individual rights are concerned, the clause
protects a defendant’s interest in having his fate decided by his
____________________________________________
2 We note with displeasure that while Appellant lists three issues on appeal in
his brief, the argument section of the brief is divided into six separate
subsections, in violation of Pa.R.A.P. 2119(a) (“The argument shall be divided
into as many parts as there are questions to be argued; and shall have at the
head of each part—in distinctive type or in type distinctively displayed—the
particular point treated therein”). Counsel is cautioned to abide by the Rules
of Appellate Procedure in the future.
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first jury. It is grounded on the concept that no person should be
harassed by successive prosecutions for a single wrongful act and
that no one should be punished more than once for the same
offense.
Commonwealth v. Johnson, 231 A.3d 807, 819 (Pa. 2020) (cleaned up).
Concerning collateral estoppel, we have stated that the principle “is
treated as a subpart of double jeopardy protection” and “does not
automatically bar subsequent prosecutions[,] but does bar redetermination in
a second prosecution of those issues necessarily determined between the
parties in a first proceeding which has become a final judgment.”
Commonwealth v. States, 938 A.2d 1016, 1020 (Pa. 2007) (cleaned up).
Our High Court has employed a three-part test “to determine if collateral
estoppel applies to limit further litigation on a particular issue,” engaging in
the following inquiries:
1) an identification of the issues in the two actions for the purpose
of determining whether the issues are sufficiently similar and
sufficiently material in both actions to justify invoking the
doctrine;
2) an examination of the record of the prior case to decide whether
the issue was “litigated” in the first case; and
3) an examination of the record of the prior proceeding to
ascertain whether the issue was necessarily decided in the first
case.
Id. (citation omitted).
With this background in mind, we turn to Appellant’s issues. Appellant
first argues that double jeopardy shields him from the instant criminal
prosecution. In particular, he contends that the charges in question arose from
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the same incidents that had been adjudicated by the PFA Order, such that he
was being punished for the same conduct twice. See Appellant’s brief at 10,
12-13. He purports that the charges for harassment and stalking contain the
same elements as the behavior the PFA sought to prevent. Id. at 15-17. In
tandem with his double jeopardy contention, Appellant posits that the
Commonwealth should be collaterally estopped from charging him herein,
since the charges have already been addressed and adjudicated in a prior legal
proceeding. Id. at 18-21.
In rejecting this claim, the trial court addressed the merits of Appellant’s
arguments and determined that neither double jeopardy nor collateral
estoppel applied to this case. See Trial Court Opinion, 11/9/22, at 12-15.
The court also interpreted the language of the PFA Order itself, concluding
that the underlying charges fall outside the scope of the PFA Order since it
only governed “incidents of contempt,” not criminal prosecutions. Id. at 10.
For its part, the Commonwealth joined in these positions. See
Commonwealth’s brief at 10, 17. Additionally, it averred, without significant
discussion in its brief, that Appellant and Ms. Murcko lacked the capacity to
negotiate away the Commonwealth’s right to prosecute criminal acts, and that
Appellant failed to cite any authority permitting the same. Id. at 22-23.
Upon review, we find that the trial court did not err in denying
Appellant’s motion to dismiss. In reaching this conclusion, however, we deem
it unnecessary to engage in a detailed discourse addressing double jeopardy,
collateral estoppel, or contract interpretation. Rather, we first note that the
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PFA Order was a consent order, which “is a contract which has been given
judicial sanction, and, as such, it must be interpreted in accordance with the
general principles governing the interpretation of all contracts.” Com. ex rel.
Kane v. UPMC, 129 A.3d 441, 463 (Pa. 2015) (citation omitted). Further, it
is a well-established principle of law that “a contract cannot impose obligations
upon one who is not a party to the contract.” ABG Promotions v. Parkway
Pub., Inc., 834 A.2d 613, 618 (Pa.Super. 2003). Here, the record confirms
that the Commonwealth was not involved in negotiating or preparing the PFA
Order, and no representative from the Commonwealth executed it.
Accordingly, as a matter of law, we find that the Commonwealth is not bound
by the terms of the PFA Order, and therefore cannot be precluded from
prosecuting Appellant for any criminal charges based on that agreement
alone.
Even if either double jeopardy or collateral estoppel did apply to
preclude the Commonwealth from prosecuting Appellant for the identical
conduct giving rise to the ICC complaint,3 we further find that Appellant would
not be entitled to relief for two reasons. First, Appellant cannot demonstrate
that jeopardy attached to the contempt charges that the PFA Order addressed.
“It is undisputed that double jeopardy attache[s] to criminal contempt trials.”
Commonwealth v. Wilson, 227 A.3d 928, 936 (Pa.Super. 2020). However,
____________________________________________
3 See, e.g., Commonwealth v. Jackson, 10 A.3d 341 (Pa. 2010)
(concluding that double jeopardy prohibited the Commonwealth from trying a
defendant for criminal trespass after a previous finding of criminal contempt
based on the same conduct).
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it does not attach “until a defendant stands before a tribunal where guilt or
innocence will be determined.” Commonwealth v. Martin, 97 A.3d 363, 365
(Pa.Super. 2014). In a bench trial, particularly, jeopardy does not attach until
the court begins to hear evidence. Id.With respect to the ICC complaint, no criminal contempt trial was
conducted. Rather, Appellant and Ms. Murcko entered into the PFA Order to
resolve both the TPFA and the contempt allegations without a trial. No
evidence was presented, and similarly there was no finding that Appellant was
in contempt. Indeed, the PFA Order specifically provided that it was entered
into without any admission of guilt. As such, jeopardy never attached during
the ICC action, and the Commonwealth would not be precluded from later
criminal prosecution for that same conduct.
Second, collateral estoppel does not apply because it is clear the current
charges were for matters that were neither within the scope of the PFA Order
nor asserted in the prior ICC action. The incident triggering the ICC hearing
occurred on July 22, 2021, where it was alleged that Appellant rode past Ms.
Murcko’s place of business on his motorcycle while revving his engine.
However, the criminal information in this matter identified that the instant
charges stemmed from events occurring on dates other than July 22, 2021.
Both the stalking and harassment charges related to Appellant’s conduct on
July 5, 2021, when Appellant was alleged to have broken Ms. Murcko’s iPhone,
and October 20, 2021, when Ms. Murcko called police because Appellant was
again revving his motorcycle outside of her place of business. The count for
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criminal mischief related exclusively to matters before Ms. Murcko obtained
the TPFA, and therefore could not additionally give rise to contempt of that
subsequent TPFA. As such, neither doctrine prohibited prosecution of the
crimes charged. Therefore, Appellant is not entitled to relief on these claims.4
In his next issue, Appellant argues that the trial court’s refusal to dismiss
the criminal charges constituted a violation of the coordinate jurisdiction rule,
since it effectively overturned or relitigated the judicially-sanctioned PFA
Order. See Appellant’s brief at 24-27. We note that this doctrine “commands
that upon transfer of a matter between trial judges of coordinate jurisdiction,
a transferee trial judge may not alter resolution of a legal question previously
decided by a transferor trial judge.” Commonwealth v. Banks, 198 A.3d
391, 398 n.8 (Pa.Super. 2018). The rule “falls within the ambit of the ‘law of
the case doctrine.’” Commonwealth v. King, 999 A.2d 598, 600 (Pa.Super.
2010) (citation omitted). Thus, our standard of review is de novo. See
Commonwealth v. Lancit, 139 A.3d 204, 206 (Pa.Super. 2016) (cleaned
up).
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4 Included within his first issue, Appellant also contended that any alleged
criminal conduct occurring after the PFA Order’s execution should have been
dismissed based on the language stating that it “shall not be considered a
violation of this order if [Appellant] is driving on public roadways or traveling
on public thoroughfares or sidewalks.” Appellant’s brief at 17. He asserted
that because the charges for harassment or stalking stemmed in part from
incidents in October of 2021, wherein Appellant drove his vehicle near Ms.
Murcko’s place of employment, he cannot be charged for that conduct, per the
PFA Order. Since we find that the terms of the PFA Order do not bind the
Commonwealth, supra, we are not persuaded by this argument.
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After a review of the certified record, we readily conclude that the facts
of this case did not implicate application of the coordinate jurisdiction rule
because this action did not involve a transfer of a matter between judges of
coordinate jurisdiction. Rather, it involved two separate cases, between
different sets of parties, with the trial court here interpreting the PFA Order
entered in the prior action solely for purposes of addressing Appellant’s
unmeritorious double jeopardy and collateral estoppel claims. As such, the
procedural posture of this case removed it from the purview of the law of the
case doctrine, and, in turn, the coordinate jurisdiction rule.
Moreover, even if the doctrine applied, it would not have been violated
by the trial court’s decision to deny Appellant’s motion to dismiss. As
discussed above, the PFA Order cannot bind the Commonwealth and does not
preclude it from prosecuting Appellant for the underlying acts. It simply had
no bearing on the instant prosecution. In other words, the decision to allow
the Commonwealth to proceed in this case did not “alter resolution of a legal
question” determined by the judge in the ICC action. Banks, supra at 398
n.8. This claim is therefore without merit.
Appellant’s final issue concerns the notions of public policy. See
Appellant’s brief at 28-30. He cites case law for the proposition that
settlement agreements are favored in the law. Id. at 28. Appellant laments
that if the PFA Order is not given full faith and credit, this subverts the
expectations of the parties, who believed that their agreement resolved all
claims and precluded additional criminal proceedings. Id. at 28-29. He
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believes that the court’s decision is inconsistent with the public policy that a
resolution agreed upon by the parties should “bring closure to the dispute.”
Id. at 30.
As to this contention, the trial court determined that public policy is
perverted when “a defendant seeks to use as a shield a PFA Order that he
himself is not in compliance with.” Trial Court Opinion, 11/9/22, at 15. It
also stated that “the more problematic public policy concern would be if a
victim of abuse was prohibited from seeking further recourse following a
sincere attempt to amicably resolve PFA issues when the defendant continued
to engage in threatening behavior following a consent decree.” Id. In its
brief, the Commonwealth contends that there is no violation of public policy
since, as we determined above, the terms of the PFA Order did not preclude
criminal prosecution. See Commonwealth’s brief at 27-28.
We find that Appellant has not demonstrated that the trial court’s
decision violated public policy. For the reasons already discussed above, the
PFA Order could not restrict the Commonwealth, a non-party, from
prosecuting “all incidents of contempt,” let alone criminal conduct, as
Appellant purports. This is not a circumstance where the Commonwealth
agreed to refrain from prosecuting an act and then reneged on that agreement
to Appellant’s detriment. Cf. Commonwealth v. Cosby, 252 A.3d 1092,
1131 (Pa. 2021) (holding that “when a prosecutor makes an unconditional
promise of non-prosecution, and when the defendant relies upon that
guarantee to the detriment of his constitutional right not to testify, the
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principle of fundamental fairness that undergirds due process of law in our
criminal justice system demands that the promise be enforced”).
As discussed above, in refusing to grant Appellant’s motion to dismiss
criminal charges, the trial court did not circumnavigate the PFA Order or any
other private arrangement as it related to Appellant and Ms. Murcko.
Appellant’s public policy argument simply rests on a factual premise that we
reject.
In sum, since none of Appellant’s issues on appeal warrants relief, we
have no cause to reverse the order denying his motion to dismiss.
Order affirmed.
DATE: 11/22/2023
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