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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES GREGORY, :
:
Appellant : No. 3098 EDA 2013
Appeal from the Judgment of Sentence September 6, 2013
In the Court of Common Pleas of Northampton County
Criminal Division No(s).: CP-48-MD-0001261-2013
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 31, 2015
Appellant, James Gregory, appeals from the judgment of sentence
entered in the Northampton County Court of Common Pleas following his
convictions on five counts of indirect criminal contempt1 for violating a
Protection from Abuse (“PFA”) order.2 His attorney, James F. Brose, Esq.
(“Counsel”), has filed an Anders3 petition for leave to withdraw. Counsel’s
*
Former Justice specially assigned to the Superior Court.
1
23 Pa.C.S. § 6114(a).
2
The Commonwealth filed a letter with this Court, stating it does not
prosecute contempt charges arising from PFA orders and thus will not file a
brief.
3
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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Anders brief presents three issues: the authentication of a radio show
transcript admitted into evidence, the court’s imposition of separate
sentences for five PFA violations, and the denial of Appellant’s request to
continue the contempt hearing. We grant Counsel’s petition to withdraw,
deny Appellant’s pro se motion for extension of time to file a pro se brief,
and affirm the judgment of sentence.
On May 20, 2013, the trial court granted Angelina Ingrassia’s petition
for a temporary PFA order against Appellant, her then-boyfriend with whom
she lived. This temporary order arose from Ingrassia’s allegation that on
May 15th, Appellant kicked, strangled, and choked her, bit her wrist, pushed
“really hard” on her eye sockets, and prevented her from leaving their
residence. Trial Ct. Op., 8/7/14, 1-2. Ingrassia also averred that on the
following day, she and Appellant attended a political event, and that evening
Appellant sent her “multiple threatening text messages.”4 Id. at 3.
On July 3, 2013, the trial court conducted a hearing on three indirect
criminal contempt complaints, finding Appellant guilty at one and imposing
six months’ supervised probation. The court also entered a final PFA order.
On July 12, 2013, the court found Appellant in indirect criminal
contempt on another complaint and imposed a sentence of six months’
incarceration. On August 2nd, the court granted immediate parole.
4
Appellant was “a write-in candidate” for mayor of the City of Bethlehem.
N.T. PFA H’rg, 9/6/13, at 9, 47.
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On September 6, 2013, the court held a hearing on five additional
complaints of indirect criminal contempt, which are the bases of the instant
five PFA violations. Appellant was represented by Michael Corcoran, Esq.
(“Trial Counsel,”) who informed the court he was “formally retained” at
10:30 p.m. the prior night. N.T. at 2. Trial Counsel requested a
continuance, but the court denied it, stating it had granted Appellant a
continuance one week earlier for the specific purpose of retaining counsel.
The court then heard the allegations of the five complaints, which we
summarize as follows. First, at the July 12, 2013 PFA hearing, Appellant
gave a hand-written letter to Ingrassia’s attorney to give to Ingrassia. Id.
at 34. The letter “included the phrase, ‘I loved you at hello.’” Trial Ct. Op.
at 7.
Second, on July 22, 2013, Ingrassia received a handwritten letter from
inmate Will Filer, whom she did not know. The letter, which was “torn-up”
when Ingrassia received it, stated, “[Appellant] cannot write to you directly
because of the PFA. He said to tell your mom not to worry about the
thousand [sic]. His attorneys will cost much more.” N.T. at 21, 22. A
second note in the envelope stated, “I loved you at hello. I’m so, so sorry I
rarely told you so.” Id. at 22.
Next, on August 2, 2013, Ingrassia received a letter from inmate
Raymond Davenport, whom she did not know. Id. at 20-21. Included was
a note, in Appellant’s handwriting, which stated, “I loved you at hello. I’m
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so, so sorry I rarely told you so.” Id. at 19, 20.
Fourth, Ingrassia reported that beginning on “the day after he was
released from prison,” Appellant called her more than twenty times. Id. at
41. Most of the calls came from a phone number she did not recognize. Id.
at 42. Ingrassia answered one call but did not speak, “just to see if [the
other person] would speak, and they hung up.” Id. at 38, 43. At
Ingrassia’s request, her friend “called the number, and a gentleman
answered.” Id. at 38. The friend asked who he was, and he replied he was
Appellant; the friend recognized Appellant’s voice. Id.
Finally, on August 26, 2013, Appellant spoke on his morning radio
program about “expos[ing] Northampton County corruption.” 5 Id. at 5, 11.
At the conclusion of the program, Appellant said before playing a song:
[T]he name of the song for Lina, Angelina, which [sic] . . .
Honey, I totally understand if you listen to it, you’re right.
I gave you everything you wanted except my heart. I
didn’t do that, I apologize. You deserve that. If you come
back, you’ll get it.
Id. at 14, 51. At the contempt hearing, Ingrassia presented6 a partial
transcript of the broadcast made by Bernie O’Hare, a blogger, which included
5
Appellant testified he started a radio show on “WPGA” to address local and
national political issues. N.T. at 48.
6
An attorney for the Commonwealth was present at the hearing, but the
sole statement she made was “Yes,” in response to the trial court’s asking
her, after it found Appellant guilty of indirect criminal contempt, if she
agreed with the probation officer’s sentencing recommendation. See id. at
80.
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the above statement.7 O’Hare listened to and recorded the entire hour-long
broadcast, and “transcribed the portion of the radio program that [he] felt
was a direct violation of the PFA.” Id. at 10-11.
The trial court found Appellant guilty on all five counts of indirect
criminal contempt and imposed five consecutive terms of three to six
months’ incarceration, for an aggregate sentence of fifteen to thirty months.
The court also found Appellant violated his parole and probation and re-
sentenced him to six months, to run concurrently with the contempt
sentences. Trial Ct. Op. at 8.
Appellant filed a timely motion for reconsideration of sentence, which
the court denied.8 Appellant filed a timely notice of appeal on November 7,
2013, and complied with the court’s order to file a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal. The trial court issued an
opinion on August 7, 2014.
Before appellate briefs were filed, this Court received notice that
Appellant’s counsel passed away.9 Current counsel, Attorney Brose, entered
7
“A recording of the broadcast was not submitted as evidence.” Anders
Brief at 4.
8
The trial court’s opinion stated Appellant filed a second post-sentence
motion on October 7, 2013, and that it denied it on October 22nd. Trial Ct.
Op. at 9. However, neither the motion or order denying it appears in the
certified record, and there are likewise no docket entries for these filings.
9
This was not Attorney Corcoran, Appellant’s counsel at the contempt
hearing.
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his appearance on February 20, 2015, and on May 1st filed the instant
Anders petition and brief for our review. Appellant then filed a pro se
“Motion to Grant Petition of Appellant’s Counsel to Withdraw and Request for
a 60 Day Extension to File a Pro Se Brief.”10
We examine whether Counsel complied with the requirements of
Anders and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
This Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
Santiago. The brief must:
(1) provide a summary of the procedural history and
facts, with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the
relevant facts of record, controlling case law, and/or
statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a
copy of the Anders brief to his client. Attending the brief
10
Appellant also filed a pro se letter with this Court, attaching a copy of two
pages of his Rule 1925(b) statement that were not included in Counsel’s
Anders brief.
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must be a letter that advises the client of his right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the appellant
deems worth of the court[’]s attention in addition to the
points raised by counsel in the Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted). If counsel complies with these requirements, “we
will make a full examination of the proceedings in the lower court and render
an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”
Id. at 882 n.7 (citation omitted).
In the instant appeal, Counsel’s Anders petition avers he conducted a
conscientious review of the record and believes there are no non-frivolous
bases for appeal. Counsel attached a letter he sent to Appellant, in which he
stated he could not find any valid bases for appealing, and advised Appellant
he has the right to file an appellate brief pro se or with private counsel. In
his Anders brief, Counsel summarizes the underlying facts of this case,
presents the claims Appellant wishes to pursue, cites relevant law, and
discusses why he believes the claim is frivolous. We find Counsel has
complied with the requirements of Anders and Santiago. See Orellana,
86 A.3d at 880. We thus examine the record to determine whether the
issues on appeal are wholly frivolous. See id. at 882 n.7.
As stated above, Counsel raises three issues for our review: the
authentication of the transcript of Appellant’s radio show broadcast, the
court’s imposition of separate sentences on each violation of the PFA, and
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the court’s denial of a continuance at the indirect criminal contempt hearing.
With respect to the court’s admission of the transcript of the radio
broadcast, we summarize the following. Appellant objected to the admission
of the partial transcript of the show, arguing “[t]he identity of the person
who gave it to [Ingrassia] has not been identified” and there was no one “to
authenticate the context of this document.” Id. at 6-7. The court allowed
the evidence.
We note the relevant standard of review:
The decision to admit or exclude evidence is committed to
the trial court’s sound discretion, and evidentiary rulings
will only be reversed upon a showing that a court abused
that discretion. A finding of abuse of discretion may not be
made “merely because an appellate court might have
reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support so as to be clearly
erroneous.” . . .
Commonwealth v. Koch, 106 A.3d 705, 710-11 (Pa. 2014) (plurality).11
Pennsylvania Rule of Evidence 901(a) states: “To satisfy the
requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” Pa.R.E. 901(a). “Testimony that an
11
In Koch, an evenly divided Pennsylvania Supreme Court panel affirmed
the decision of the Superior Court. Koch, 106 A.3d at 705. The question
before the Supreme Court was “the proper manner in which cell phone text
messages can be authenticated and whether and when such messages are
inadmissible hearsay,” and the standard of review and law concerning
authentication cited above was not at issue. See id. at 706.
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item is what it is claimed to be,” by “a [w]itness with [k]nowledge,” satisfies
this authentication requirement. Pa.R.E. 901(b)(1). “Authentication
generally entails a relatively low burden of proof; in the words of Rule 901
itself, simply ‘evidence sufficient to support a finding that the item is what
the proponent claims.’” Koch, 106 A.3d at 713 (quoting Pa.R.E. 901(a)).
In the case sub judice, Ingrassia called Bernie O’Hare to authenticate
the transcript. N.T. at 7. O’Hare testified as follows. He was a blogger and
“was listening to the radio show for the entire week because [Appellant]
stated he was going to expose Northampton County corruption [and because
Appellant] is a candidate for mayor in the City of Bethlehem.” Id. at 9-10.
O’Hare agreed with the court’s statement that he had a “business interest,”
“[r]elated to media,” in taping the program. Id. at 11-12. O’Hare was also
aware Appellant had a PFA order and “was concerned [Appellant] might
violate the PFA.” Id. at 10. He recorded the one-hour radio program in its
entirety, but only “transcribed the portion of the radio program [he] felt was
a direct violation of the PFA.” Id. at 10-11. “Right at the conclusion of the
show,” O’Hare made “a verbatim transcript of exactly what [Appellant]
stated on the air,” “typ[ing] it out word for word, exactly what he said.” Id.
at 9, 12. O’Hare then forwarded the transcript “to an attorney who [he]
believe[d] was meeting with” Ingrassia. Id. at 11.
In its opinion, the trial court responded to Appellant’s claim as follows:
When . . . Appellant challenged the accuracy of the
transcript, [Ingrassia] called its author as a witness. . . .
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Mr. O’Hare testified that he had transcribed the recording
at issue verbatim.
. . . Appellant cross-examined Mr. O’Hare on this
subject but was unable to elicit a material retraction. He
then challenged Mr. O’Hare’s motives in recording the
broadcast and providing it to [Ingrassia]. This line of
questioning has no bearing on whether the document is
what its proponent claimed it to be: an accurate transcript
of . . . Appellant’s August 26, 2013 broadcast.
Accordingly, we submit that the Court did not err in
concluding that the transcript was properly authenticated
and therefore admissible into evidence.[ ]
Trial Ct. Op. at 14-15.
We find no abuse of discretion in the trial court’s reasoning. See
Koch, 106 A.3d at 710. O’Hare’s testimony—that he transcribed verbatim
Appellant’s statements—was sufficient for authentication. See Pa.R.E.
901(b)(1); Koch, 106 A.3d at 713. Accordingly, we agree with Counsel that
this issue is frivolous.
The second claim in the Anders brief is that the “multiple incidents”
underlying the instant five contempt findings “should have been grouped for
sentencing.” Anders Brief at 5 (capitalization removed).
We note:
To prove indirect criminal contempt, evidence must be
sufficient to establish: the court’s order was definite, clear,
specific leaving no doubt in the person to whom it was
addressed of the conduct prohibited; the contemnor had
notice of the order; the act constituting the violation was
volitional; and the contemnor acted with wrongful intent.
Commonwealth v. McMullen, 961 A.2d 842, 849 (Pa. 2008) (citation
omitted).
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“[N]othing in Section 6114 [of the Protection from Abuse Act,
“Contempt for violation of order or agreement,”12] either explicitly or
implicitly forecloses prosecuting a defendant on multiple [indirect criminal
contempt] counts for multiple violations of a single PFA order.” Hill v.
Randolph, 24 A.3d 866, 870-71 (Pa. Super 2011).
Giving both discretion on how best to charge the
contemnor/criminal and power to impose consecutive
maximum contempt sentences equips the criminal justice
system to address most effectively the peculiar needs of
victims of domestic abuse. Achieving this end is clearly
the goal of the PFA Act.
Id. at 871.
Appellant testified to the following at the contempt hearing. With
respect to the statements in his radio broadcast, he conceded those
“references were pretty much made,” but explained they were made by
“[m]y person on the show, myself or my character, if you will.” N.T. at 49.
He stated he “was reading in [sic] the Facebook post,” and, “What I am
saying is the character is hard to describe unless you—there’s two
12
Section 6114 provides:
Where the police, sheriff or the plaintiff have filed charges
of indirect criminal contempt against a defendant for
violation of a protection order issued under this chapter, a
foreign protection order or a court-approved consent
agreement, the court may hold the defendant in indirect
criminal contempt and punish the defendant in accordance
with law.
23 Pa.C.S. § 6114(a).
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characters, myself and the character that is portrayed as the writing on
Facebook page [sic].” Id. at 46-50.
Appellant denied writing the letters sent to Ingrassia by his prison
mates. Id. at 53, 54. He testified Filer was his roommate, and Filer “had
broken up with his girlfriend, who is young, and he was asking if he can
write to [Appellant’s] girlfriend.” Id. Appellant replied to him, “[T]hat’s
entirely up to you.” Id. Appellant conceded he wrote one of the notes, but
stated he wrote it before the contempt hearing and Filer inserted it with his
letter because he “was aware that [Appellant] was in love with Ms.
Ingrassia.” Id. at 54, 56. Appellant further testified the other inmate,
Davenport, “was aware of [Appellant’s] feelings to Miss Ingrassia” and “of
the fact that [Appellant] was not able to make any contact with her.” Id. at
59-60. Appellant then testified:
So, you know, through me, because that is why it’s
written in my handwriting, [Davenport] didn’t feel
comfortable with his handwriting, so he kind of wrote it
through me and signed it and sealed it and delivered it.
And I certainly can’t.
Id.
With respect to the phone calls, Appellant testified Ingrassia’s phone
number and his wife’s13 phone number both began with “241.” Id. at 57.
13
Aside from Appellant’s testimony that his wife’s name is Elaine Gregory
and he went to her house “to pick up the dog,” there is no further
information about Appellant’s wife in the contempt hearing transcript. See
N.T. at 57.
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On two occasions, he intended to call his wife but accidentally called
Ingrassia. He denied placing another eighteen calls to Ingrassia. Id. at 58,
62.
In addressing Appellant’s claim that the evidence was insufficient to
convict him of five counts of indirect criminal contempt, the court opined:
[In issuing the temporary PFA order, the court14] could
not have made the prohibition against any communication
with [Ingrassia] more explicit. In addition . . . Appellant
did not contest his receipt of the PFA. Thus, the first two
elements are established.
With respect to the volitional nature of the violations,
the Court found that . . . Appellant had used his
considerable intelligence and charm in a manipulative and
arrogant manner. The Court rejected his attempt to
deflect the blame for his comments during the radio show
onto his alter ego. The Court also took a dim view of . . .
Appellant’s attempt to circumvent the PFA through his
fellow inmates.
At his sentencing, . . . Appellant handed the letter to
[Ingrassia’s attorney] in person. The volitional nature of
this act is not subject to question. With respect to the
phone calls, the Court was entitled to reject . . .
Appellant’s dubious claim that he had mistakenly dialed
[Ingrassia’s] number.
In addition, [Ingrassia] testified that she had received
at least twenty calls from the unidentified number later
determined to belong to . . . Appellant. This volume of
calls cannot be attributed to mistaken dialing. With
respect to wrongful intent, we observe that . . . Appellant
has attempted to trivialize his contemptuous conduct. The
14
The Hon. Lawrence Brenner issued the temporary PFA order, and the Hon.
Leonard N. Zito conducted the final PFA hearing and instant indirect criminal
contempt hearing.
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Court views his repeated transgressions with significantly
less levity.
The precipitating event for the PFA was . . . Appellant’s
unprovoked assault on [Ingrassia]. . . .
Thereafter, he continued to violate the letter and the
spirit of the PFA. He used his radio show to entreat her to
return to him. He enlisted his fellow inmates to write love
letters to her. He telephoned her repeatedly from an
unidentified number. He even handed her . . . attorney a
letter during his sentencing for a prior contempt.
Trial Ct. Op. at 16-17.
Again, we find no error in the court’s decision. The court’s conclusions
as to Appellant’s deflection of blame are supported by Appellant’s own
testimony at the hearing. We find no abuse of discretion in the court’s
finding five separate instances of contempt and imposing five separate
sentences. See Hill, 24 A.3d at 870-71.
Finally, we consider whether the court violated Appellant’s due process
rights in denying his request for a continuance at the September 6, 2013
contempt hearing. This Court has stated:
[T]he grant or denial of a motion for a continuance is
within the sound discretion of the trial court and will be
reversed only upon a showing of an abuse of discretion. . .
. A bald allegation of an insufficient amount of time to
prepare will not provide a basis for reversal of the denial of
a continuance motion. Instead,
[a]n appellant must be able to show specifically in
what manner he was unable to prepare his defense
or how he would have prepared differently had he
been given more time. We will not reverse a denial
of a motion for continuance in the absence of
prejudice.
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Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (citations
omitted), appeal denied, 72 A.3d 603 (Pa. 2013).
As stated above, at the beginning of the September 6, 2013 contempt
hearing, Trial Counsel stated Appellant formally retained him at 10:30 the
night before and informed him “there might be some phone records critical
to his defense, as well as his phone records.” N.T. at 2. Trial Counsel
requested for more time to prepare. The court responded that on the prior
Friday, it had granted Appellant’s request for a continuance
for the specific purpose of either retaining Mr. Burke[15]or
[Trial Counsel].
He has had adequate notice. [Ingrassia] did appear last
week and she is here today. The Court is not going to
grant further continuances because of the untimely fashion
in which you were retained.
Id. at 3.
In its opinion, the trial court further reasoned that despite receiving a
continuance of one week to retain counsel, Appellant “waited for six days to
contact his attorney” and “provided no explanation for this delay.” Trial Ct.
Op. at 13. It opined that “whatever detriment . . . Appellant may have
experienced due to his attorney’s lack of notice is attributable to his own
inaction.” Id. The court further noted, nevertheless, that Trial Counsel “still
provided a spirited defense.” Id.
15
The record does not provide more information on Mr. Burke.
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We find no abuse of discretion in the trial court’s denial of a
continuance. See Ross, 57 A.3d at 91. Appellant failed to “show
specifically . . . how he would have prepared differently had he been given
more time.” See id.
Finally, we consider Appellant’s pro se “Motion to Grant Petition of
Appellant’s Counsel to Withdraw and Request for a 60 Day Extension to File
a Pro Se Brief.” The eight-page motion, as well as the eight-page hand-
written “supplemental brief,” contains a litany of allegations of trial court
error, each cursory and lacking meaningful discussion. See, eg., Appellant’s
Mot. to Grant Pet. of Appellant’s Counsel to Withdraw, 5/26/15, at 4 (“PFA
means Protection from ‘abuse.’ None of the alleged violations constituted
‘abuse.’ Ordering contempt and jail in these instances violated [Appellant’s]
right to free Speech and Freedom of the Press.”), 6 (“Could the Judge, other
th[a]n by conjecture, extrapolate, from receipt of [the letters from
Appellant’s prison mates,] intent on the part of Appellant.”). Finding no
non-frivolous claim articulated in the motion, we deny it.
We grant Counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
Counsel’s petition to withdraw granted. Appellant’s motion for
extension of time to file a pro se brief denied. Judgment of sentence
affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2015
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