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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH W. PILCHESKY :
:
Appellant : No. 1408 MDA 2019
Appeal from the Order Dated May 31, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001075-2013
BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED: JUNE 8, 2020
Appellant, Joseph W. Pilchesky, appeals pro se from the May 31, 2019
order granting the Commonwealth’s motion to modify Appellant’s probation
conditions. We affirm.
The facts and procedural history of this case are as follows. In 2011,
Appellant, although not licensed to practice law in Pennsylvania, offered legal
advice and drafted legal documents on behalf of Dana Lewis (“Lewis”), Sheila
Hartman (“Hartman”), and Mary Chilipko (“Chilipko”) in exchange for
monetary compensation. Thereafter, in 2013, the Commonwealth charged
Appellant with the unauthorized practice of law in violation of 42 Pa.C.S.A.
§ 2524(a).
Appellant’s jury trial commenced on October 15, 2018, and all three
victims – Lewis, Hartman, and Chilipko – testified. The jury convicted
Appellant of the aforementioned crime on October 16, 2018. On January 2,
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2019, the trial court sentenced Appellant to two years’ probation and directed
him to pay $2,259.00 in court costs and $1,000.00 in restitution to Hartman.1
Thereafter, on April 15, 2019, Appellant filed a civil action in the Court
of Common Pleas of Lackawanna County against Hartman and Chilipko. In
his complaint, he alleged that both victims breached his confidence, invaded
his privacy, defamed him, and committed perjury. He also asserted a claim
of unjust enrichment against Hartman. “The civil action filed by [Appellant
sought] money damages from the [victims] ‘for mental and emotion (sic) pain
and suffering,’ ‘general damages’ and ‘compensatory damages,’ all in excess
of $30,000.00.” Trial Court Opinion, 5/31/19, at 1.
In view of Appellant’s actions, on May 1, 2019, the Commonwealth filed
a motion requesting modification of Appellant’s probation conditions.
Specifically, the Commonwealth requested the court to include the following
condition:
[Appellant] shall not engage in any act of revenge or retaliation
against any victim or witness in this case, including [] Hartman,
[] Chilipko, [] Lewis, and Edward Blasko[,] and shall not engage
in any action that would harass or annoy any victim or witness in
this case.
Commonwealth’s Motion Requesting Modification of Appellant’s Probation
Conditions, 5/1/19, at 2.
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1The trial court ordered Appellant to pay $1,000.00 in restitution to Hartman
because she submitted a victim impact statement. N.T. Sentencing Hearing,
1/2/19, at 22.
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On May 30, 2019, the trial court conducted a hearing and subsequently
granted the Commonwealth’s motion on May 31, 2019. Trial Court Opinion,
5/31/19, at 1-3. The court directed Appellant to withdraw his civil action and,
after doing so, have “no further contact with [the above-referenced]
individuals.” Id. at 3. Appellant filed a praecipe to withdraw his complaint on
June 6, 2019.
Then, on June 24, 2019, Appellant filed an application requesting the
trial court to amend its May 31, 2019 order to “include [] language found
under 42 Pa.C.S.[A.] § 702(b), relating to interlocutory appeals.” Appellant’s
Motion to Amend Trial Court’s Order, 6/24/19, at 1; see also 42 Pa.C.S.A.
§ 702(b) (permitting discretionary appellate review of interlocutory orders
where trial court states in its order that it is “of the opinion that such order
involves a controlling question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the matter”). The trial court
did not rule on Appellant’s application. Thus, on August 2, 2019, Appellant
filed a petition for review with this Court. On August 27, 2019, this Court
entered an order directing that Appellant’s petition for review be treated as a
notice of appeal from the May 31, 2019 order. Order, 8/27/19, at 1; see also
Pa.R.A.P. 1316(a)(2).
Appellant raises the following issue on appeal:
[Whether the trial court abused its discretion in granting the
Commonwealth’s motion to modify the conditions of Appellant’s
probation?]
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See generally Appellant’s Brief at 4.
Preliminarily, we must address the timeliness of this appeal as it
implicates our jurisdiction. Commonwealth v. Andre, 17 A.3d 951, 957-958
(Pa. Super. 2011). The Commonwealth argues that we should quash
Appellant’s appeal as untimely because Appellant needed to file a notice of
appeal on or before July 1, 2019, and instead, filed a petition for review with
this Court on August 2, 2019. Commonwealth’s Brief at 10. Upon review, we
decline to quash the instant appeal.
In general, an appeal of an interlocutory order “may be taken by
permission under 42 Pa.C.S.A. § 702(b).” Pa.R.A.P. 1311(a). If the
interlocutory order does not contain “the statement specified in 42 Pa.C.S.[A.]
§ 702(b),” a petitioner must file an “application for an amendment of [the]
interlocutory order” to include the requisite language “within 30 days after
[its] entry.” Pa.R.A.P. 1311(b). The trial court must “act[] on the application
within 30 days after it is filed” or the application is “deemed denied[.]” Id.
If the trial court denies a petitioner’s application, “a petition for review under
Chapter 15 of the unappealable order of denial is the proper mode” to attempt
to secure appellate review. Pa.R.A.P. 1311, Note.
If, however, a petitioner files a “request for discretionary review” and
the order from which he seeks review is, in fact, “immediately appealable,”
this Court treats the request as a notice of appeal under the following
circumstances:
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(1) where a party has filed a timely petition for permission to
appeal pursuant to Pa.R.A.P. 1311; or
(2) where a party has filed a timely petition for review from a trial
court's refusal of a timely application pursuant to Pa.R.A.P. 1311
to amend the order to set forth expressly the statement specified
in 42 Pa.C.S. § 702(b).
Pa.R.A.P. 1316(a)(1)-(2). Thus, where a party files a timely petition for
permission to appeal pursuant to Pa.R.A.P. 1311 and the challenged order is
final and appealable, an appellate court treats the petition as a timely notice
of appeal. Pa.R.A.P. 1316(a)(1). In addition, pursuant to Rule 1316(a)(2),
“where the trial court refuses an application to amend an order to set forth
expressly the statement specified in 42 Pa.C.S. § 702(b), and that order was
in fact appealable as of right, the appellate court shall treat a Chapter 15
petition for review . . . as a notice of appeal.” Id. Both circumstances are
present in this case.
Herein, Appellant filed an application requesting the trial court to amend
its May 31, 2019 order to include the language set forth in Section § 702(b).
Appellant filed the application on June 24, 2019, within 30 days of the May 31
order. The trial court’s May 31 order, however, was immediately appealable
as a final order because it “dispose[d] of all claims and of all parties.”
Pa.R.A.P. 341(b)(1). Thereafter, the trial court denied Appellant’s application
on July 24, 2019 when it failed to act on the application within 30 days.
Appellant then filed a timely petition for review with this Court on August 2,
2019. See Pa.R.A.P. 1512(a) (explaining that a petitioner must file a petition
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for review “with the prothonotary of the appellate court within 30 days after
[entry of the order denying an application to amend.]”).
Because the trial court’s May 31 order was, in fact, final and appealable
(requiring no permission to appeal), this Court, pursuant to Pa.R.A.P.
1316(a)(1), treated Appellant’s June 24 application, although unnecessary
and erroneous, as a timely notice of appeal. See Pa.R.A.P. 1316, Note (“[Rule
1316] requires the appellate court to treat a timely, but erroneous, petition
for permission to appeal pursuant to Pa.R.A.P. 1311 from an order which is,
in fact, immediately appealable as of right, as a timely notice of appeal.”).
Moreover, because Appellant, on August 2, 2019, timely petitioned for review
the denial of his application to amend,2 and because the May 31 order
Appellant sought to amend was appealable as of right, we have jurisdiction
over the present appeal and may proceed to the merits of Appellant’s claims.
See Pa.R.A.P. 1316, Note (“Also, pursuant to [Pa.R.A.P. 1316(a)(2)], where
the trial court refuses an application to amend an order to set forth expressly
the statement specified in 42 Pa.C.S. § 702(b), and that order was in fact
appealable as of right, the appellate court shall treat a Chapter 15 petition for
review of the trial court's refusal to amend as a notice of appeal.”)
Appellant argues that the trial court abused its discretion in granting the
Commonwealth’s motion to modify his probation and, in turn, directing him to
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2 See Pa.R.A.P. 1512(a) (petitioner must file a petition for review “with the
prothonotary of the appellate court within 30 days after [entry of the order
denying an application to amend]”).
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withdraw his civil complaint against Hartman and Chilipko. Appellant's claims
challenge the discretionary aspects of his sentence. See Commonwealth v.
Koren, 646 A.2d 1205 (Pa. Super. 1994) (applying discretionary aspects of
sentencing analysis when the defendant claimed that the trial court’s
imposition of no contact with the victim was an unreasonable condition of
probation). In general, a “challenge[] to the discretionary aspects of
sentencing do[es] not entitle an appellant to review as of right.”
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation
omitted). Rather, an appellant “must invoke this Court’s jurisdiction by
satisfying a four-part test.” Id. In this instance, however, Appellant is
challenging an order which granted the Commonwealth’s motion to modify the
terms of his probation. The Commonwealth submitted this motion in response
to Appellant’s conduct while under supervision. Thus, Appellant is not
challenging his original judgment of sentence. For this reason, we will forgo
the conventional preservation requirements and consider the merits of
Appellant’s claim.
It is well-settled that:
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
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Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)
(quotation omitted).
Pursuant to 42 Pa.C.S.A. § 9771(a), a trial court “has inherent power
to[,] at any time[,] . . . increase the conditions under which an order of
probation has been imposed upon a finding that a person presents an
identifiable threat to public safety.” 42 Pa.C.S.A. § 9771(a). To increase the
conditions of an individual’s probation, the trial court must conduct a hearing
and “consider the record of the sentencing proceeding together with evidence
of the conduct of the defendant while on probation.” 42 Pa.C.S.A. § 9771(b).
In imposing or modifying an order of probation, a court may require a
defendant “[t]o satisfy any other conditions reasonably related to the
rehabilitation of the defendant and not unduly restrictive of his liberty or
incompatible with his freedom of conscience.” 42 Pa.C.S.A. § 9754(c)(13).
A probation order is unique and individualized. It is constructed
as an alternative to imprisonment and is designed to rehabilitate
a criminal defendant while still preserving the rights of law-abiding
citizens to be secure in their persons and property. When
conditions are placed on probation orders they are formulated to
insure or assist a defendant in leading a law-abiding life.
Moreover, as long as conditions placed on probation are
reasonable, it is within a trial court's discretion to order them.
Commonwealth v. Houtz, 982 A.2d 537, 539-540 (Pa. Super. 2009)
(citation omitted).
Herein, we conclude that the requirement that Appellant refrain from
harassing, annoying, and suing the victims/witnesses in his case is entirely
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reasonable. A review of the record demonstrates that Appellant knew that
Chilipko and Hartman were immune from suit and yet, he decided to file a civil
action against them. See N.T. Hearing, 5/30/19, at 7; see also Greenberg
v. McGraw, 161 A.3d 976, 983 (Pa. Super. 2017) (“[J]udicial privilege applies
to communications issued in the regular course of judicial proceedings”
regardless of the form of the cause of action). Thus, it is apparent that
Appellant sought to “punish [these witnesses]” simply for complying with a
subpoena and testifying against him at trial. Id. at 8. In view of his
underlying conviction, the trial court’s decision to grant the Commonwealth’s
motion and order Appellant to withdraw his civil action did not amount to an
abuse of discretion.
Order affirmed.
Judge Dubow joins this Memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/08/2020
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