J-S63044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATIE BRITTON                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ALEKSEY N. MAKSIMOV

                             Appellant                 No. 2238 EDA 2015


         Appeal from the Judgment of Sentence Entered May 27, 2015
          in the Court of Common Pleas of Bucks County Civil Division
                            at No(s): 2012-60700-A

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 23, 2017

        Appellant, Aleksey N. Maksimov, appeals from the judgment of

sentence of six months’ imprisonment entered in the Bucks County Court of

Common Pleas for indirect criminal contempt.1 Appellant argues that there

was insufficient evidence of contempt, and that the trial court abused its

discretion by (1) denying him discovery under the Rules of Criminal

Procedure, (2) refusing to permit him to represent himself pro se during

trial, and (3) imposing an excessive sentence. We affirm.

        The trial court set forth the factual and procedural history of this case

as follows:




*
    Former Justice specially assigned to the Superior Court.
1
    23 Pa.C.S. § 6114.
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       [Appellant] and Appellee Katie Britton were close friends
       since childhood, described by Ms. Britton as “best friends.”
       The troubling events that eventually transpired between
       the parties took a turn for the worse after Appellee
       terminated their intimate relationship.           After the
       termination of the parties’ relationship, Appellant appeared
       at Appellee’s residence unannounced and was spotted
       peering through Appellee’s windows. After Appellant failed
       to leave when told to do so, Appellee contacted the police.
       Appellant was warned to stay away from Appellee’s
       residence by the police but Appellant returned shortly after
       the police left to do burnouts back and forth in front of
       Appellee’s property.

          A few days later, Appellant returned to Appellee’s
       residence.     When commanded to leave, Appellant
       physically forced his way into Appellee’s residence where
       an argument ensued between the parties.          Appellant
       deprived Appellee of her cell phone when she threatened
       to contact the police.    When Appellant left, Appellee
       resorted to contacting her friend through Facebook and
       had the friend report the incident to the police on her
       behalf. Thereafter, Appellant was arrested on February
       24, 2012.

          After Appellant was released on bail on February 28,
       201[2], Appellant apologized to Appellee for his behavior
       and the two reconciled as friends. However, afterwards,
       Appellant had an argument with Appellee in front of
       Appellee’s father’s residence. When Appellee chose to
       leave, Appellant followed Appellee down the road in his car
       while arguing with Appellee the entire time. The parties
       drew attention from other drivers and when one stopped to
       speak with Appellee, Appellant became aggravated and
       subsequently left his car and chased Appellee on foot,
       tackling Appellee several times and forcefully restrained
       her while she was on the ground. Appellant threate[ne]d
       that he would “fuck up” Appellee’s life if she contacted the
       police. Only with the help of a neighbor that heard the
       commotion did Appellant temporarily leave.

          Appellee proceeded to walk home while on the phone
       with a friend but was again ambushed by Appellant. This
       time, Appellant forcefully deprived Appellee of both her cell


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         phone and her keys. Appellee’s friend contacted the police
         and Appellee was able to dial 911 before Appellant
         cancelled the call. Appellant did not return the keys until
         after hearing police sirens and when another one of
         Appellee’s friend chanced by in his car and stopped to
         intervene. Appellee was escorted home by the friend
         where the police were waiting.

            Later, when Appellee was at the police station filing a
         police incident report of the events that was just
         described, she noticed that Appellant was driving by the
         police station. Appellee notified the police and Appellant
         was apprehended near the police station on March 20,
         2012.    As a result of the above behavior and other
         behavior too extensive to be summarized herein, the
         [c]ourt entered a PFA [Protection From Abuse] Order
         against Appellant on April 4, 2012, prohibiting Appellant
         from having “ANY CONTACT” with the Appellee [for three
         years], “either directly or indirectly” . . . “at any location.”
         Further[,] the original Order stated in clear, unequivocal
         terms that Appellant “shall not contact Plaintiff” (Appellee)
         either directly or indirectly . . . by telephone, or by any
         other means, including “through third persons.”2

            In addition, testimony and documentation at the
         hearing in the form of docket entries, etc.in this matter
         indicated that Appellant[] had been convicted in [c]riminal
         [c]ourt of at least two matters involving the Appellee as
         the same complainant/victim. Appellant was convicted
         and received a sentence of one year[’s] probation for
         [h]arassment under 18 Pa.C.S. § 2709(a)(1) on July 13,
         2012, involving Appellee as the victim/complainant, and
         Appellant was ordered not to contact Appellee. Appellant
         was then convicted on May 29, 2013 of [s]talking under 18
         Pa.C.S. § 2709.1(a)(1), and [i]ntimidation of [w]itnesses
         or [v]ictims under 18 Pa.C.S. § 4952(a)(2) involving
         Appellee as the victim/complainant, and was ordered to
         serve a sentence of 11.5 months to 23 months at the

2
  A notice provision in the order provided: “Violation of this order may result
in your arrest on the charge of indirect criminal contempt which is
punishable by a fine of up to $1000 and/or a jail sentence of up to six
months. 23 Pa.C.S. § 6114.”



                                      -3-
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       Bucks County Correctional Facility with a concurrent seven
       year term of probation.

           Conditions of Appellant’s probation included no contact
       with the victim. Shortly thereafter, Appellant violated his
       concurrent term of probation by contacting Appellee from
       the Bucks County Correctional Facility and was
       subsequently sentenced on August 26, 2013 for a violation
       of probation to a term of not less than three years nor
       more than seven years at a State Correctional Facility. As
       indicated in the Petition for Contempt Addendum, the
       violation of probation included Appellant making calls to
       Appellee from the Bucks County Correctional Facility using
       his inmate account and other inmates’ accounts.          In
       addition, Appellee received calls from Appellant through
       countless cell phones and letters addressed to Appellee by
       Appellant using pseudonyms. In these phone calls and
       letters, Appellant sometimes threatened Appellee with
       physical harm and violence if she failed to withdraw the
       criminal charges pending against Appellant. Appellant also
       threatened to disclose intimate pictures of Appellee in
       attempts to coerce Appellee into dropping the criminal
       charges. At the Violation of Parole/Probation Hearing, the
       [c]ourt reaffirmed that Appellant was to have no contact
       with Appellee.

          Since the Violation of Parole/Probation Hearing,
       Appellee enjoyed a period of respite from direct contact
       from Appellant. However, while it was not the subject of
       this matter, it appears that Appellant had contacted
       Appellee’s mother from SCI-Houtzdale, which perhaps
       could have been alleged as “indirect contact” but was not
       raised in the case other than through testimony.

          Despite the 2012 PFA Order[,] and despite being
       warned again to have no contact with Appellee at the
       Violation of Parole/Probation Hearing, Appellant resumed
       contact with Appellee on May 29, 2014 by sending
       Appellee a letter addressed from the state prison in which
       he was incarcerated. Appellee notified the police on the
       same day she received the letter in the mail and
       subsequently petitioned the [c]ourt for the current criminal
       contempt hearing against Appellant.



                                  -4-
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Trial Ct. Op., 1/16/16, at 3-6 (citations omitted).

      On March 19, 2015, Appellee filed a detailed contempt petition alleging

that Appellant violated the 2012 PFA Order by mailing her the letter on May

29, 2014.      On the same date, the trial court ordered a contempt hearing.

The sheriff served Appellant with the petition on March 24, 2015.

      On April 7, 2015, Appellant filed a pro se motion seeking discovery

under Pa.R.Crim.P. 573.         His motion requested, inter alia, Appellee’s cell

phone records, records of her Facebook messages, and her emails and text

messages. Disc. Mot., 4/7/15, at ¶¶ 11-13.

      On May 27, 2015, the trial court convened a hearing to determine

whether to hold Appellant in indirect criminal contempt. N.T., 5/25/15, at 3.

The   Public     Defender     appeared    on   behalf    of       Appellant,   and   the

Commonwealth appeared on behalf of Appellee. Id. at 1, 3. After Appellee

began testifying on direct examination, Appellant stated: “As you recall, I

filed for discovery.       Where’s my discovery?”       Id. at 17.      The trial court

denied Appellant’s request for discovery, ruling that the Rules of Criminal

Procedure      did   not   authorize   discovery   during     a     domestic   relations

proceeding. Id. at 18-19. Appellant responded that he was firing the Public

Defender, whom he called a “public pretender,” and demanded the

appointment of other court-appointed counsel.           Id. at 19.       The trial court

denied Appellant’s request. Id. at 23-25. Appellant then moved to proceed

pro se, but the trial court denied this motion as well. Id. at 26-27.



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      The trial court described the remainder of the contempt hearing as

follows:

           Appellant was continually argumentative and attempted
           repeatedly to disrupt the testimony of the witnesses or the
           [c]ourt’s instructions and rulings. More disturbing were his
           outbursts directed towards Appellee and Detective Peter
           Stark. Despite being in a criminal contempt hearing for
           violating an existing no-contact/no harassment PFA Order
           against Appellee, Appellant—throughout the hearing—
           shouted on approximately eighteen occasions remarks in a
           foreign language to the Appellee. It was later determined
           by the [c]ourt that he was most often shouting, among
           other things: “I love you” to Appellee.           On cross-
           examination of Appellee, Appellant repeatedly attempted
           to ask highly inappropriate questions, such as, on at least
           four separate occasions[,] he asked the Appellee if she
           loved him.

              At one point, later in the proceeding, Appellant also
           inappropriately requested to have a private conference
           with Appellee in a separate room despite the grave nature
           of the PFA contempt allegations against him. The [c]ourt
           has strong suspicion to believe, based on Appellant’s
           perverse behavior and demeanor during the hearing, that
           it was his intent and motive all along to pervert the court
           system into another method for him to seek attention from
           Appellee and to be in the same room with her, even if just
           for the length of the hearing.

             Also, the [c]ourt notes that at the conclusion of
           Detective Stark’s testimony, Appellant made an offhand
           comment to Detective Stark suggesting that Appellant had
           engaged in intimate relations with Detective Stark’s wife.
           What was perhaps most startling was the fact that
           Appellant referenced Detective Stark’s wife by her first
           name.

             Furthermore, the [c]ourt was less than impressed with
           Appellant’s antics at the conclusion of the hearing[,]
           wherein he feigned a heart attack or some medical
           emergency and had to be carried out by court officers
           when he refused to leave the courtroom as directed.


                                      -6-
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Trial Ct. Op. at 7-8 (record citations omitted).       The trial court found

Appellant guilty of indirect criminal contempt and sentenced him to six

months’ imprisonment, the maximum penalty for indirect criminal contempt

under 23 Pa.C.S. § 6114(b)(1). Id. at 2-3.

      Appellant did not file post-sentence motions. Nor did he appeal within

thirty days after imposition of sentence.    On July 1, 2015, through court-

appointed counsel, Appellant filed an unopposed petition for leave to appeal

nunc pro tunc. On July 6, 2015, the trial court granted Appellant leave to

appeal nunc pro tunc within the next thirty days.         On July 21, 2015,

Appellant appealed to this Court. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal, which we have re-

ordered for purposes of disposition:

         1. Did the [t]rial [c]ourt err in that there was not enough
         evidence to prove beyond a reasonable doubt that
         Appellant was in contempt[?]

         2. Did the [t]rial [c]ourt err in finding . . . Appellant in
         contempt for a letter written on or about May 29, 2014[?]

         3. Did the [t]rial [c]ourt fail to understand the nature of
         the proceedings and to afford Appellant his right to
         criminal discovery[?]

         4. Were Appellant’s rights violated when the [t]rial [c]ourt
         refused to allow him to proceed pro se[?]

         5. Did the [t]rial [c]ourt violate Appellant’s constitutional
         rights by sentencing him [to] six months consecutive to his
         current sentence[?]


                                       -7-
J-S63044-16



          6. Did the [t]rial [c]ourt err in sentencing Appellant to a
          consecutive six month sentence[,] when under 23 Pa.C.S.
          § 6114.1(c)[,] sentence shall not exceed six months[?]

Appellant’s Brief at 3.

        Preliminarily, we must determine whether to quash this appeal as

untimely.    Although neither Appellant nor the Commonwealth raises the

issue of the timeliness of the appeal, we may raise questions of jurisdiction

sua sponte.      See Commonwealth v. Lindey, 760 A.2d 416, 418 (Pa.

Super. 2000).

        Allowance of an appeal nunc pro tunc lies in the sound discretion of

the trial judge. See McKeown v. Bailey, 731 A.2d 628, 630 (Pa. Super.

1999). Generally, “a [t]rial [c]ourt may grant an appeal nunc pro tunc when

a delay in filing is caused by extraordinary circumstances involving fraud or

some breakdown in the court’s operations through a default of its officers.”

Id. (citation and quotation marks omitted). At the time of sentencing, the

court is required to inform the defendant “of the right to file post-sentence

motions and to appeal [and] the time within which the defendant must

exercise those rights[.]” Pa.R.Crim.P. 704(C)(3)(a). Failure to apprise the

defendant of these rights constitutes a breakdown in the operations of the

court    which    entitles    the   defendant    to   appeal   nunc   pro   tunc.

Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004). Here,

the trial court failed to inform Appellant of these rights on the record or in its

judgment of sentence.        Therefore, we will not fault Appellant for failing to


                                        -8-
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appeal within thirty days after imposition of sentence. We decline to quash

this appeal.

      In his first argument on appeal, Appellant challenges the sufficiency of

the evidence underlying his conviction for indirect criminal contempt.

Appellant does not deny that he contacted Appellee by sending her a letter

on May 29, 2014.       Instead, Appellant claims that Appellee deliberately

delayed filing her contempt petition until March 19, 2015, ten months after

his letter, and as Appellant neared his parole date on his prior sentences.

Appellant’s Brief at 16. Appellant complains that the purpose of this delay

was to induce the trial court, who “disliked Appellant,” to invent a pretext for

keeping him in jail past his parole date. Id. at 13, 16. Appellant insists that

Appellee’s actions “were vindictive in nature and not for [her] protection . . .

or [her petition] would have been filed sooner.” Id. at 13. We disagree.

      When examining a challenge to the sufficiency of the evidence, our

standard of review is well settled:

         The standard we apply . . . is whether viewing all the
         evidence admitted at trial [] in the light most favorable to
         the verdict winner, there is sufficient evidence to enable
         the fact-finder to find every element of the crime beyond a
         reasonable doubt. In applying [the above] test, we may
         not weigh the evidence and substitute our judgment for
         the fact-finder.     In addition, we note the facts and
         circumstances established by the Commonwealth need not
         preclude every possibility of innocence.        Any doubts
         regarding a defendant’s guilt may be resolved by the fact-
         finder unless the evidence is so weak and inconclusive that
         as a matter of law no probability of fact may be drawn
         from the combined circumstances. The Commonwealth
         may sustain its burden of proving every element of the


                                      -9-
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         crime beyond a reasonable doubt by means of wholly
         circumstantial evidence. Moreover, in applying the above
         test, the entire record must be evaluated and all evidence
         actually received must be considered. Finally, the finder of
         fact[,] while passing upon the credibility of witnesses and
         the weight of the evidence produced is free to believe all,
         part or none of the evidence.

Commonwealth v. Brumbaugh, 932 A.2d 108, 109-10 (Pa. Super. 2007)

(citation omitted).

      The Protection from Abuse Act, 23 Pa.C.S. §§ 6101-6122, empowers

courts to hold a defendant who violates a PFA order in “indirect criminal

contempt and punish the defendant in accordance with law.” 23 Pa.C.S. §

6114(a). “A charge of indirect criminal contempt consists of a claim that a

violation of an order or decree of court occurred outside the presence of

the court.    Where a PFA order is involved, an indirect criminal contempt

charge is designed to seek punishment for a violation of the protective

order.” Commonwealth v. Baker, 722 A.2d 718, 720 (Pa. Super. 1999)

(en banc) (citations omitted) (emphasis added).

      The elements of criminal contempt are:

         (1) the order must be definite, clear, specific and leave no
         doubt or uncertainty in the mind of the person to whom it
         was addressed of the conduct prohibited, (2) the
         contemnor must have had notice of the specific order or
         decree, (3) the act constituting the violation must have
         been volitional, and (4) the contemnor must have acted
         with wrongful intent.

Id. at 721 (citation omitted). “As with any other criminal proceeding, [the

defendant] may be found guilty of the charged offense only if the



                                    - 10 -
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Commonwealth     proves   every   element    beyond   a   reasonable     doubt.”

Commonwealth v. Nelson, 690 A.2d 728, 732 (Pa. Super. 1997) (citation

omitted).

     The trial court explained that the evidence satisfies every element of

indirect criminal contempt:

           Initially, the [c]ourt states that it found the testimony
        of the Appellee to be fully credible. With regard to the
        enumerated factors that require our review: First, the
        [c]ourt found that the 2012 PFA Order that Appellant was
        charged with violating was definite, clear, specific, and left
        no doubt or uncertainty. In the Order, Appellant was
        specifically prohibited from having “ANY CONTACT” with
        Appellee, either directly or indirectly, at any and all
        locations. The Order further specified that Appellant shall
        not contact Appellee, “either directly or indirectly, by
        telephone, or by any other means, including through third
        persons.” The Order could not have been clearer in its
        direction to Appellant to cease all contacts with Appellee,
        including contacts via mail. Yet, Appellant sent a letter
        while incarcerated that was addressed to and received by
        Appellee on May 29, 2014.

           Second, the [c]ourt found beyond a reasonable doubt
        that Appellant had notice of the 2012 PFA Order. The
        Order itself was entered at a hearing in open [c]ourt and
        was done by agreement.         The Appellant was present
        throughout the proceeding, was represented by counsel[,]
        and the Agreement was signed by Appellant. Accordingly,
        there is no dispute that Appellant knew of the Order.

           Third, the [c]ourt found beyond a reasonable doubt that
        Appellant’s act of sending the letter to Appellee was
        volitional.  Appellant’s actions of writing out a letter,
        addressing and mailing the envelope, and seeing to it that
        it was mailed, were not coerced or accidental. Appellant
        took deliberate actions in sending Appellee the letter.

           Furthermore, the [c]ourt found that Appellant was the
        sender of the letter beyond a reasonable doubt. Again, the


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       [c]ourt found Appellee and Detective Stark’s testimonies to
       be credible.        The [c]ourt disbelieved Appellant’s
       halfhearted contention, as suggested in the questioning
       that he was not the person who sent the letter received by
       Appellee.   At the hearing, the [c]ourt heard evidence
       relating to Appellee’s first-hand knowledge and ability to
       recognize the letter as being sent by Appellant. Appellee
       indicated   she     had    received    somewhere    in    the
       neighborhood of thirty letters from Appellant previously.
       Appellee testified that the letter was addressed to her from
       Appellant with a return address of the prison where
       Appellant was serving time. Appellee also testified that
       she knew the letter to be from Appellant because the
       content of the letter contained intimate details only
       Appellant would know.

          The [c]ourt disbelieved Appellant’s argument that since
       Appellee did not open the letter herself, the letter must
       have been tampered with by the police. At the hearing,
       testimony were elicited from Appellee and Detective Stark
       as to who exactly opened the letter. It turns out [that]
       Appellee had immediately turned the letter over to the
       police before even opening the letter. Appellee was aware
       of the contents of the letter only after Detective Stark had
       opened the letter and sent an electronic scanned copy of
       the letter to Appellee.

           In addition, when Appellant was made aware of this
       event, he voiced his objections and demanded to know
       whether the envelope containing the letter also contained
       a card. While Appellant and Detective Stark have no
       recollection of any card being included in the letter and the
       fact that the inclusion of any card was irrelevant to a
       finding of contempt, Appellant in essence tacitly admitted
       that he sent the letter. Appellant would only be aware of
       the contents of the letter and potential inclusion of a card
       if he had prior knowledge that the letter was sent.

          As for the fourth and final factor, the [c]ourt found that
       Appellant acted with wrongful intent.           Counsel for
       Appellant elicited from Appellee at the hearing that the
       content of the letter sent included an apology by Appellant
       for his past behavior. While the [c]ourt is aware of the
       supposed general apologetic contents of the letter, it is not


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         persuaded that the letter was not made without wrongful
         intent.   The letter also indicated a possible plan for
         Appellant to join a foreign army (apparently a past theme
         of Appellant) and an invitation for Appellee to live abroad
         with Appellant/Defendant upon his release. Again, ANY
         contact is and was a direct violation of the PFA Order.

            Here, Appellant while imprisoned for past abuse and
         harassment of Appellee, including having previously
         unlawfully contacted the Appellee from a prison, sent
         Appellee an unwelcome letter, again from prison, in direct
         violation of the conditions of his sentence and the PFA
         Order. Although the letter may initially seem benign, it
         carries with it a more sinister intent.     According to
         Appellee’s documentation and testimony at the hearing,
         Appellant has a history of constant abuse and intimidation
         that would be interjected with apology. The abuse and
         harassment would essentially cycle between intimidation
         and apology.     However, after each apology, Appellant
         would soon revert back to his abusive and harassing
         behavior including making threats against Appellee if she
         did not drop criminal charges against him.

             The fact that Appellant’s letter contained, in part, an
         apology for his past behavior does not sway the [c]ourt
         from concluding that the main reason for the letter was an
         attempt to reintroduce himself into Appellee’s life once
         again.    When accompanied by a review of his past
         behavior and his unusual and inappropriate conduct at the
         hearing, the [c]ourt re-states its suspicion that what
         Appellant wanted all along was a chance to see Appellee in
         [c]ourt again, to express his feelings again, and to
         intimidate her again.      Accordingly, the [c]ourt finds
         Appellant’s apology in the letter disingenuous, and in light
         of the facts and circumstances in this case as developed in
         the testimony and documentation presented at the
         hearing, the [c]ourt’s finding of criminal contempt was
         proper.

Trial Ct. Op. at 20-23 (record citations omitted).   We agree with the trial

court’s excellent analysis and hold that the evidence is sufficient to sustain

Appellant’s conviction for indirect criminal contempt.       By focusing on


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Appellee’s ten-month delay in filing the contempt petition, Appellant

attempts to divert our attention from his blatant violation of the trial court’s

order prohibiting any contact with Appellee. In addition, we know of no legal

authority precluding Appellee from filing a PFA petition ten months after

receiving Appellant’s letter.    For these reasons, Appellant’s first argument

fails.

         In his second argument on appeal, Appellant claims that the trial court

erred in finding Appellant in contempt for a letter written on or about May

29, 2014.       Once again, Appellant insists that the timing of Appellee’s

contempt petition overrides his violation of the “no contact” provision in the

trial court’s order. For the reasons provided in response to Appellant’s first

argument, we find his second argument devoid of merit.

         In his third issue on appeal, Appellant argues that the trial court erred

by denying his motion for discovery under Pa.R.Crim.P. 573, which governs

discovery in criminal cases.          Appellant contends that the contempt

proceeding was criminal in nature because the District Attorney prosecuted

the matter instead of Appellee.         Appellant’s Brief at 9.    Therefore, he

concludes, the discovery provisions in the Rules of Criminal Procedure apply.

We agree with the trial court that Pa.R.Crim.P. 573 does not apply to the

present case.

         This case arises under 23 Pa.C.S. § 6114, a provision within the

Domestic Relations Code.        The Pennsylvania Rules of Criminal Procedure



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state that “[u]nless otherwise specifically provided, these rules shall not

apply to . . . domestic relations proceedings.”            Pa.R.Crim.P. 100(a).       The

comments to Pa.R.Crim.P. 573 further state that Rule 573 “is intended to

apply only to court cases[,]” Pa.R.Crim.P. 573 cmt., that is, cases “in which

one or more of the offenses charged is a misdemeanor, felony, or murder of

the first, second, or third degree.” Pa.R.Crim.P. 103.

       This Court has stated that “[r]ecognizing the inherent criminal nature

of   [indirect    criminal]   contempt,    the     legislature   has    enshrouded    the

proceeding with appropriate procedural safeguards.”               Cipolla v. Cipolla,

398 A.2d 1053, 1056 (Pa. Super. 1979). However, those safeguards need

not rise to the level of a criminal proceeding. See id. at 1057 (“(N)o need

exists to fit criminal contempt, a crime sui generis, into the mold of

procedures       created   for   more   commonplace        offenses.”    (citations   and

quotation marks omitted)); see also 23 Pa.C.S. § 6114(b)(3) (“The

defendant shall not have a right to a jury trial on a charge of indirect

criminal contempt”), (d) (“Disposition of a charge of indirect criminal

contempt shall not preclude the prosecution of other criminal charges

associated with the incident giving rise to the contempt, nor shall disposition

of other criminal charges preclude prosecution of indirect criminal contempt

associated with the criminal conduct giving rise to the charges.”).




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      These authorities demonstrate that Appellant has no right to obtain

discovery under Pa.R.Crim.P. 573.    We further agree with the trial court’s

observation that Appellant

         had [all] necessary information and documentation to be
         apprised of the nature of the proceedings against him[]
         and to be properly prepared to defend his case in [c]ourt.
         Appellant had what all defendant in PFA contempt
         proceedings have[:] a copy of the original PFA order and a
         full copy of the [p]etition [a]lleging [c]ontempt of a [PFA]
         [o]rder.

Trial Ct. Op. at 9.

      In his fourth issue on appeal, Appellant challenges the trial court’s

refusal to allow him to represent himself pro se during the contempt

hearing. We conclude that no relief is due.

      Just as a criminal defendant has a constitutional right to counsel, so

does the defendant have “a long-recognized constitutional right to dispense

with counsel and to defend himself before the court.” Commonwealth v.

Starr, 664 A.2d 1326, 1334 (Pa. 1995) (citation omitted). The right to self-

representation, however, is not absolute. See Commonwealth v. Staton,

12 A.3d 277, 282 (Pa. 2010).        “A request to take on one’s own legal

representation after meaningful proceedings have begun does not trigger the

automatic constitutional right to proceed pro se. The decision instead is left

to the sound discretion of the trial court.” Commonwealth v. El, 977 A.2d

1158, 1165 (Pa. 2009) (citation omitted).     “Meaningful proceedings” have

begun “when a court has begun to hear motions which have been reserved



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for time of trial; when oral arguments have commenced; or when some

other such substantive first step in the trial has begun.”        Id. (citation

omitted).

      When Appellant moved to proceed pro se, the trial court had already

(1) begun the hearing, (2) heard most of Appellee’s testimony on direct

examination, (3) denied Appellant’s discovery request, and (4) denied

Appellant’s   request   for   new   court-appointed   counsel.   Under   these

circumstances, the trial court had the discretion to deny Appellant leave to

proceed pro se. See id. The trial court aptly recognized that Appellant had

no reasonable basis for proceeding pro se but was merely “do[ing] all he

could to create disruption, delay, and confusion[] and to lengthen the time

he was in the [c]ourtroom with Appellee.” Trial Ct. Op. at 15. Thus, the

trial court acted within its discretion in denying Appellant leave to represent

himself pro se.

      We review Appellant’s fifth and sixth arguments together.        In both

arguments, Appellant contends that the trial court abused its discretion by

sentencing him to six months’ imprisonment consecutive to his current

sentence.

      Both issues are challenges to the discretionary aspects of Appellant’s

sentence. This Court has held:

         Challenges to the discretionary aspects of sentencing do
         not entitle an appellant to appellate review as of right.
         Prior to reaching the merits of a discretionary sentencing
         issue:


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            [w]e conduct a four part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, see Pa.R.Crim.P.
            [720]; (3) whether appellant’s brief has a fatal
            defect, Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some

citations and quotation marks omitted).

      Appellant failed to explain during the contempt hearing why his

sentence was excessive.     He merely stated, without elaboration, that “the

law does not allow [the trial court] to make [Appellant’s sentence]

consecutive” to his current sentence. N.T., 5/25/16, at 99. Appellant also

failed to file post-sentence motions challenging the excessiveness of his

sentence. Ordinarily, this would constitute a waiver of his right to challenge

the excessiveness of his sentence on appeal. See Evans, 901 A.2d at 533-

34.   In this case, however, we will excuse this omission due to the trial

court’s failure to apprise Appellant of his right to file post-sentence motions.

      Nevertheless, we conclude that the trial court had ample reason for

imposing a consecutive sentence in view of Appellant’s long history of




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abusive behavior towards Appellee, his refusal to stop contacting her, and

his reprehensible conduct during the contempt hearing.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2017




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