Com. v. Ettorre, E.

Superior Court of Pennsylvania·Decided March 2, 2026·No. 205 MDA 2025·Unpublished·Dubow

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

ELAINE ETTORRE :

:

Appellant : No. 205 MDA 2025

Appeal from the Judgment of Sentence Entered September 19, 2024 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003303-2022

BEFORE: DUBOW, J., BECK, J., and LANE, J. MEMORANDUM BY DUBOW, J.: FILED: MARCH 2, 2026 Appellant, Elaine Ettorre, appeals from the September 19, 2024 judgment of sentence of a period of one day to two years less one day in county jail entered in the Lancaster County Court of Common Pleas following her conviction of Stalking.1 Appellant challenges the sufficiency and weight of the evidence, the court’s refusal to conduct a Grazier2 hearing and to appoint standby counsel, an evidentiary ruling, and the denial of her motion to dismiss on double jeopardy grounds. After careful review, we affirm.

The relevant facts and procedural history are as follows. On May 16, 2022, the Commonwealth filed a criminal information alleging that from December 2018 to April 2022, Appellant engaged in a course of harassing

1 18 Pa.C.S. § 2709.1(a)(1).

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

conduct that constituted stalking the victim. This conduct included: (1) screaming profanities at the victim; (2) allowing her dog to defecate on the victim’s property; (3) parking in front of the victim’s house and blasting loud music from her vehicle; (4) calling the victim “fat”; and (5) sending numerous e-mails to the victim’s employers and high-ranking Lancaster County officials accusing the victim of unethical conduct.

Appellant initially retained private counsel, Attorney Katherine McShane, to represent her; however, on November 27, 2023, Attorney McShane filed a petition to withdraw indicating that Appellant had requested her withdrawal. Later that day, Appellant filed a response to the petition objecting to counsel’s request to withdraw, alleging that the “bad faith actions of the District Attorney’s Office have created conflicts which have resulted in a Petition to Withdraw as Defense Counsel[.]” Answer, 11/27/23, at ¶ 17. She urged the court to deny the motion because “she cannot afford another lawyer, still owes money to the lender for her current lawyer, and does not waive her Sixth Amendment right to legal counsel.” Id. at ¶ 18.

On December 1, 2023, Attorney McShane filed an amended petition to withdraw explaining that she had believed Appellant concurred with her request to withdraw because Appellant had repeatedly expressed a lack of trust in Attorney McShane, that every discussion with Appellant “devolve[d] into conspiracy theories,” and that Appellant was unable to communicate appropriately with her. Amended Mot., 12/1/23 at ¶¶ 5-6. Attorney McShane attached correspondence from Appellant in which Appellant stated that

Attorney McShane was “disqualified” from representing her and accused Attorney McShane of lying to and vilifying her. Id. at ¶¶ 9-10. On December 28, 2023, the trial court granted Attorney McShane’s petition to withdraw.

On January 10, 2024, Appellant pro se filed a “Motion for Appointment of Counsel, Recusal of Lancaster County Bench, Recusal of Lancaster County District Attorney’s Office, and Dismissal of All Charges pursuant to Pa.R.Crim.P. Rule 600.” On January 26, 2024, Appellant appeared at the call of the list and expressed confusion regarding whether she was represented by counsel. The court informed Appellant that it had permitted her prior counsel to withdraw and that she would be proceeding pro se unless she obtained new private counsel or sought court-appointed counsel. On February 7, 2024, the trial court denied Appellant’s motion and explained by order that Appellant could obtain private counsel or apply for a public defender.

On February 26, 2024, Appellant filed a second “Request for Appointment of Counsel/Recusal of Trial Judge.” The next day, the court held a hearing at which it reviewed the background of the case and explained that “[a]s a matter of courtesy to Appellant, [it] granted [the] hearing so that any misunderstanding would be straightened out and the case [could] be prepared for call of the list.” N.T. Hr’g, 2/27/24, at 4. During the hearing, Appellant repeatedly represented that she did not want to proceed pro se, wanted new counsel appointed, and had applied, but did not qualify, for a public defender. When pressed by the court, Appellant admitted that she had not submitted all the required paperwork and, therefore, her application had not been

processed. The court notified Appellant that if she failed to secure an attorney by the beginning of April, she would need to be prepared to represent herself at trial.

On March 27, 2024, Appellant filed a “Motion to Dismiss Criminal Information due to Double Jeopardy” in which she contended that the conduct alleged in the criminal information was not criminal and did not show a pattern of conduct intent as envisioned by the Stalking statute. She further contended that, “regardless, [Appellant] has already gone to trial for the exact same acts alleged in the criminal information” because the victim filed a private criminal complaint on March 15, 2022, alleging a series of acts perpetrated by Appellant between January 2019 and February 15, 2022. Mot., 3/27/24, at ¶¶ 4-5. Appellant alleged, in particular, that after the victim filed a private criminal complaint, Appellant was charged and convicted of three counts of summary Harassment for separate incidents that occurred prior to the filing of the criminal information in the instant case. Following her conviction by the magistrate judge, Appellant filed appeals from her convictions to the Court of Common Pleas, which were pending at the time she filed her motion. On April 1, 2024, the trial court denied Appellant’s motion to dismiss, finding that, because Stalking is a “course of conduct” offense, the Commonwealth was not barred from prosecuting Appellant for Stalking simply because Appellant’s prior summary Harassment convictions arose from incidents that later formed the basis of the Commonwealth’s “course of conduct” allegations in support of the Stalking prosecution.

Meanwhile, on March 28, 2024, Appellant again appeared for call of the list, still unrepresented by counsel. She informed the court that she had tried to hire an attorney but could not afford one. She further represented that she “believed” she had applied for a public defender. N.T. Hr’g, 3/28/24, at 2-3. A representative from the office of Bail Administration who was present at the hearing explained that the office had informed Appellant of the documentation required to complete her application for appointment of counsel, but that Appellant had failed to submit the requisite documentation. The Bail Administration representative also reported that Appellant’s boyfriend, Steve Kirchner, had been communicating with the office on Appellant’s behalf. The court then notified Appellant that she needed to be prepared to go to trial at the next term with or without counsel.

On April 1, 2024, the court issued an order stating that it would only grant Appellant a continuance of trial upon an attorney’s entry of appearance or receipt of a notice from Bail Administration that Appellant had submitted all the documents necessary to obtain a public defender. On April 5, 2024, the court issued an order stating that Appellant would proceed to trial pro se unless an attorney entered an appearance on her behalf. In that order, the court also appointed attorney Daniel Bardo as stand-by trial counsel, noting that his services were for trial only, unless or until Appellant formally retained him.

Free access — add to your briefcase to read the full text and ask questions with AI

Com. v. Ettorre, E., (Pa. Ct. App. 2026).

Com. v. Ettorre, E. (Com. v. Ettorre, E.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Ronald J. Goldberg
67 F.3d 1092 (Third Circuit, 1995)
United States v. Victor Darnell Thomas
357 F.3d 357 (Third Circuit, 2004)
Commonwealth v. Hardy
918 A.2d 766 (Superior Court of Pennsylvania, 2007)
Commonwealth v. Grazier
713 A.2d 81 (Supreme Court of Pennsylvania, 1998)
Commonwealth v. Coleman
905 A.2d 1003 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Roefaro
691 A.2d 472 (Superior Court of Pennsylvania, 1997)
Commonwealth v. Lucarelli
971 A.2d 1173 (Supreme Court of Pennsylvania, 2009)
Commonwealth v. Thomas
879 A.2d 246 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Kane
10 A.3d 327 (Superior Court of Pennsylvania, 2010)
Commonwealth v. Houtz
856 A.2d 119 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Gould
912 A.2d 869 (Superior Court of Pennsylvania, 2006)