J-S17010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

STEPHEN ROZNIAKOWSKI,

                         Appellant                   No. 2348 EDA 2018


                Appeal from the Order Entered July 16, 2018
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002367-2015


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 05, 2019

      Appellant, Stephen Rozniakowski, appeals from the trial court’s July 16,

2018 order granting the Commonwealth’s “Petition to Enforce No-Contact

Conditions of Sentence” (hereinafter “the Petition”). Appellant argues that we

must vacate that order because he was not properly served with the Petition.

After review, we agree with Appellant; thus, we vacate the court’s order and

remand for further proceedings.

      The facts of Appellant’s underlying convictions are not pertinent to this

appeal. We need only note that in November of 2017, Appellant pled guilty

to the first-degree murder of Valerie Morrow, and to the aggravated assault

of Morrow’s minor daughter. For these offenses, Appellant was sentenced to

life imprisonment, without the possibility of parole, and a consecutive term of

10 to 20 years’ incarceration. Additionally, he was ordered to not have any
J-S17010-19



direct or indirect contact with the victims’ family. Appellant did not file an

appeal.

      On February 2, 2018, Appellant posted a picture of himself and Morrow

on Facebook, with the caption, “Forever in my heart.” On July 2, 2018, the

Commonwealth filed the Petition, asking the trial court to “prohibit[]

[Appellant] from using Facebook or other forms of social media or electronic

communication to have direct or indirect contact with the victim’s family, and

that any existing post(s) depicting or referencing his victim be removed

immediately.”   Petition, 7/2/18, at 4.    The Commonwealth’s certificate of

service attached to the Petition confirmed that Appellant’s counsel was served

with notice thereof; however, according to the trial court, counsel was no

longer representing Appellant when that service was made. See Trial Court

Opinion (TCO), 10/29/18, at 3. Despite that Appellant had not been served

with the Petition, on July 16, 2018, the trial court entered an order granting

it. As per the Commonwealth’s requests, the order stated: “[Appellant] is

prohibited from using Facebook or other forms of social media or electronic

communication to have direct or indirect contact with the victim’s family. Any

existing post(s) depicting or referencing his victim is ORDERED to be removed

immediately.” Order, 7/16/18.

      Appellant filed a timely, pro se notice of appeal, and the court appointed

counsel to represent him herein.     Appellant timely complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors




                                     -2-
J-S17010-19



complained of on appeal, and the court filed a responsive Rule 1925(a) opinion

on October 29, 2018.

      Herein, Appellant states three issues for our review:

      I.     Were [] Appellant’s due process rights violated in that the
             Delaware County District Attorney’s Office filed a motion
             with the court to enforce a no[-]contact order without notice
             of said motion being provided to [Appellant]?

      II.    Were [] Appellant’s due process rights violated in that the
             court did not provide notice of a scheduled hearing pursuant
             to the District Attorney’s motion to [Appellant]?

      III.   Were [] Appellant’s due process rights violated in that a
             hearing was conducted without [Appellant] being present or
             taking part and after said hearing, the court render[ed] a
             decision based solely on the representations of the
             Commonwealth?

Appellant’s Brief at 4.

      Before addressing Appellant’s arguments, we observe that he has not

complied with Pa.R.A.P. 2119, in that he presents one, undivided argument in

support of the three, above-stated issues. See Pa.R.A.P. 2119(a) (requiring

that the appellant divide his argument “into as many parts as there are

questions to be argued” with distinctive headings indicating “the particular

point treated” in each section). However, Appellant’s error in this regard does

not impede our review of his claims and, therefore, we do not deem his issues

waived on this basis.

      Appellant contends that his due process rights were violated by the

Commonwealth’s failure to serve him, or an attorney representing him, with

the Petition. “A question regarding whether a due process violation occurred



                                      -3-
J-S17010-19



is a question of law for which the standard of review is de novo and the scope

of review is plenary.” Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa.

Super. 2017) (citation omitted).       Additionally, our Supreme Court has

explained:

            The Fourteenth Amendment provides in part: “nor shall any
     State deprive any person of life, liberty, or property, without due
     process of law,” and protects “the individual against arbitrary
     action of government[.]” Similarly, Article I, Section 9 of the
     Pennsylvania Constitution guarantees a criminal defendant the
     right to due process of law. These two due process provisions are
     largely coextensive. The constitutional right to due process
     guarantees more than fair process, covering a substantive sphere
     as well, barring certain government actions regardless of the
     fairness of the procedures used to implement them.               “Due
     process” is not susceptible to precise definition; rather, the phrase
     expresses the requirement of “fundamental fairness,” a requisite
     whose meaning can be as opaque as its importance is lofty.

             In terms of procedural due process, government is
     prohibited from depriving individuals of life, liberty, or property,
     unless it provides the process that is due. While not capable of
     an exact definition, the basic elements of procedural due process
     are adequate notice, the opportunity to be heard, and the chance
     to defend oneself before a fair and impartial tribunal having
     jurisdiction over the case. Thus, courts examine procedural due
     process questions in two steps: the first asks whether there is a
     life, liberty, or property interest that the state has interfered with;
     and the second examines whether the procedures attendant to
     that deprivation were constitutionally sufficient.

Commonwealth v. Turner, 80 A.3d 754, 763–64 (Pa. 2013) (cleaned up).

     Here, in its opinion, the trial court agrees with Appellant that the failure

to serve him with the Commonwealth’s petition is a due process error that

requires us to vacate the court’s order and remand for further proceedings.

See TCO at 3. The Commonwealth, however, contends that Appellant’s due



                                      -4-
J-S17010-19



process rights were not violated because he “was not deprived of any liberty

interest guaranteed by the State or Federal Constitutions as a result of the

trial [court’s] clarification and enforcement order.” Commonwealth’s Brief at

5. According to the Commonwealth, “there is no protected State or Federal …

liberty interest that [Appellant], a life[-]sentenced state inmate, can assert in

his posting on Facebook or other social media, given the restrictive conditions

of confinement and ordinary regulations pertaining to life in prison.” Id. at 6.

Moreover, the Commonwealth insists that the Petition did not seek to alter the

sentencing conditions imposed, but simply asked the court to enforce the no-

contact provision of Appellant’s sentence.

      We disagree with the Commonwealth. The Supreme Court of the United

States “has characterized the freedom of speech and that of the press as

fundamental personal rights and liberties.”      Schneider v. State of New

Jersey, 308 U.S. 147, 150 (1939). The Commonwealth cites no case law to

support its suggestion that Appellant’s status as an inmate, in and of itself,

curtails his right to freedom of speech beyond the no-contact component of

his sentence.    Moreover, contrary to the Commonwealth’s position, the

sentencing court’s brief statement that Appellant shall have “[n]o contact,

direct or indirect, with any of the members of the victim[s’] family” does not

unequivocally   encompass     the   social   media   post   that   triggered   the

Commonwealth’s filing of the Petition in this case. See N.T. Plea/Sentencing,

11/29/17, at 29. Therefore, before the court could curtail Appellant’s freedom

of speech by ordering him to remove that post, and precluding him from

                                      -5-
J-S17010-19



making any other similar posts in the future, Appellant was entitled to notice

of the Petition, the opportunity to be heard, and the chance to defend himself.

Because Appellant was deprived of these entitlements, his due process rights

were violated.   Therefore, we vacate the order granting the Petition and

remand for further proceedings.

      Order vacated. Case remanded. Jurisdiction relinquished.

      President Judge Emeritus Ford Elliott joins this memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/19




                                     -6-
