Com. v. Ziemba, C.

• Court: Superior Court of Pennsylvania
• Decided: March 16, 2016
• Docket: 910 MDA 2015
• Status: Unpublished

Opinion

J-S18042-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CHRISTOPHER ZIEMBA : : Appellant : No. 910 MDA 2015

Appeal from the Judgment of Sentence January 14, 2015 in the Court of Common Pleas of Wyoming County, Criminal Division, at No(s): CP-66-CR-0000324-2013

BEFORE: BOWES, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 16, 2016

Christopher Ziemba (Appellant) appeals from the judgment of

sentence entered after he was convicted of stalking, indecent exposure,

open lewdness, and two counts of disorderly conduct. After careful review,

we affirm.

Appellant and the victims, Bernard and Sandra Razawich, lived in

homes next door to each other in Lake Carey, Wyoming County,

Pennsylvania. While Bernard owned his home for many years, Appellant

purchased the home during the middle of a property dispute among various

neighbors who were all claiming to own parts of the same pieces of land

surrounding their homes and the lake. This dispute led to a quiet title action

among various neighbors, including the Razawiches and Appellant.

*Retired Senior Judge assigned to the Superior Court. J-S18042-16

One dispute in the quiet title action was over a piece of land where the

Razawiches wished to park a car, which was a piece of land that Appellant

was also claiming. Sandra testified that in May 2008, as retaliation for their

claim of what he believed was his land, Appellant was “digging a trench

around [their] car with his pants down [partway].” N.T., 10/21/2014, at 36.

She testified that she and Bernard could see “a good portion” of Appellant’s

buttocks. Id. at 37. They reported the incident to police, and Appellant pled

guilty to disorderly conduct as a result of the incident. In April 2009, after a

trial in the quiet title action, the trial court awarded Bernard a piece of

property that had a boathouse on it, but did not award him a second part of

the land he was claiming. Appellant was not awarded any land in that

litigation.

Following the verdict in the quiet title action, Appellant and the

Razawiches had a number of encounters. Sandra testified that on June 6,

2010, she was standing outside her house with her grandchildren, and they

saw Appellant sitting by the lake “showing … part of his buttocks again.” Id.

at 39. Shortly thereafter, Appellant “mooned” Bernard. Id. at 41. Sandra

further testified that later the same weekend, she saw Appellant “grabbing

his privates” at her. Id. at 43. She testified that he “grab[bed] them and

[shook] them” even though his shorts were on. Id. at 44. She testified that

“he was doing it to [her] and he still does it to her.” Id.

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Sandra then testified that in July of 2011, she saw large pieces of

debris on her property. Bernard checked the surveillance camera and it

showed Appellant throwing debris against their shed. Id. at 45. They

contacted police, and Appellant was prosecuted and found guilty of

harassment and disorderly conduct. Id. at 47. Bernard testified that he put

surveillance cameras on the property prior to the incident “to protect

[him]self from these strange things happening and what’s going on.” Id. at

170.

Sandra next testified about an incident that occurred on September 3,

2012, at around 1:00 a.m. She, Bernard, and several of their adult children

were sitting on the deck, and they saw Appellant “with his pants down.” Id.

at 54. Then, Appellant “started dancing” and “playing with himself.” Id.

They could see his “penis and testicles … just bouncing around.” Id. The

jury viewed surveillance video depicting this incident.1

Sandra testified that because of these incidents, she “cannot relax

when [Appellant is] around” and that she does not “know what he’s going to

do next.” Id. at 57. She is concerned about having her children and

grandchildren come to stay with her.

Appellant also testified about these incidents. He testified that he was

digging the trench in May 2008 because of the property dispute. He stated

1 That video is not included in the certified record.

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that his pants were loose and when they would fall down, he would pick

them up. Id. at 258. He claimed that the Razawiches filed charges in

connection with this incident to coerce him into giving up some of his

property in the dispute. Appellant testified that he did not remember the

June 6, 2010 incident. Appellant admitted to having made a “mistake” with

respect to placing the debris on the Razawiches’ property in 2011. Id. at

262. Finally, with respect to the weekend of September 3, 2012, Appellant

testified that he had a few drinks and was dancing for his girlfriend; but, he

never grabbed his penis or took off any clothing.

On May 30, 2013, a criminal complaint was filed against Appellant.

Specifically, he was charged with open lewdness, indecent exposure, and

two counts of disorderly conduct with respect to the September 3, 2012

incident. Additionally, he was charged with stalking for the course of

conduct that occurred between May 4, 2008 and September 3, 2012.

Appellant was tried before a jury on October 21-22, 2014, and the jury

returned a verdict of guilty on all five charges.

On January 14, 2015, Appellant was sentenced to an aggregate term

of eight to 23½ months of incarceration, with a concurrent term of 12

months of probation. Notably, for the stalking and indecent exposure

convictions, Appellant was given consecutive aggravated-range sentences.

At the close of the sentencing hearing, counsel for Appellant withdrew his

appearance, and attorney Christopher P. Arnone entered his appearance for

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Appellant. Appellant timely filed a post-sentence motion and also requested

leave to file a supplemental post-sentence motion. The trial court permitted

the filing of the supplemental post-sentence motion, which included

allegations of ineffective assistance of counsel. On April 30, 2015, the trial

court denied Appellant’s post-sentence motion.

On May 27, 2015, Appellant pro se filed a notice of appeal to this

Court. The trial court ordered Appellant to file a concise statement of errors

complained of on appeal, and Appellant complied. This Court then

remanded the case to conduct a hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1988). After determining that Appellant did not

waive his right to counsel, the trial court appointed counsel to represent

Appellant on appeal and filed an opinion.

On appeal, Appellant sets forth four issues for our review.2 We begin

with Appellant’s contention that the trial court erred in denying his motion in

limine to exclude prior bad acts. Appellant’s Brief at 21-25.3 Appellant

2 The Commonwealth’s brief was initially due on November 16, 2015. On November 17, 2015, the Commonwealth requested an extension of time to file its brief. This Court gave the Commonwealth until December 16, 2015 to file its brief. The Commonwealth filed its brief on February 12, 2016 without explanation. Accordingly, the Commonwealth’s brief was not considered in this case. 3 Appellant references the trial court’s order of August 19, 2014, which denied his motion to exclude evidence of prior bad acts. While the order is part of the certified record, the motion is not included.

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contends that the incidents that led to the stalking charge and conviction

constituted prior bad acts which the trial court should have excluded.

“The admissibility of evidence is a matter for the sound discretion of

the trial court. An appellate court may reverse only where the trial court

abused its discretion.” Commonwealth v. Urrutia, 653 A.2d 706, 709 (Pa.

Super. 1995).

“A person commits the crime of stalking when the person … engages

in a course of conduct or repeatedly commits acts toward another person …

under circumstances which demonstrate either an intent to place such other

person in reasonable fear of bodily injury or to cause substantial emotional

distress to such other person[.]” 18 Pa.C.S. § 2709.1(a)(1).

In Commonwealth v. Evans, [445 A.2d 1255 (Pa. Super. 1982),] the [C]ourt examined the admissibility of prior bad acts to prove the existence of a course of conduct for harassment. The court noted that proof of a course of conduct “undermines the appellant’s contention that the reviewing court is precluded from examining the testimony elicited regarding matters that occurred prior to ... the date of the complained of conduct.” See also Commonwealth v. Schnabel,[] 344 A.2d 896, 898 ([Pa. Super.] 1975) (evidence of single act of misconduct insufficient to establish “course of conduct” element of harassment); Commonwealth v. Showalter, [] 332 A.2d 456, 458 ([Pa. Super.] 1974) (evidence of prior violence against prosecutrix admissible as demonstrating overall scheme of harassment).

Course of conduct by its very nature requires a showing of a repetitive pattern of behavior. Therefore, where evidence of prior bad acts is necessary to establish the pattern, the evidence is admissible.

Urrutia, 653 A.2d at 709-10.

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Instantly, the Commonwealth could not prove a stalking charge

without the admission of the incidents Appellant sought to exclude. In fact,

under Appellant’s logic, the Commonwealth could never prove a stalking

case involving a course of conduct. These incidents were not “other acts”

inadmissible under these circumstances. Rather, these were the acts

themselves that led to the stalking charge against Appellant. Accordingly,

the trial court did not abuse its discretion in denying Appellant’s motion in

limine, and Appellant is not entitled to relief.

Appellant next sets forth a convoluted argument about purported

discovery violations by the Commonwealth. Appellant’s Brief at 25-27. He

claims first that the trial court erred in denying Appellant’s request for a new

trial based upon the Commonwealth’s withholding of discovery and material

pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Id. at 25. As a

corollary to this claim, Appellant argues that trial counsel was ineffective for

failing to procure all surveillance videos and photos that the Razawiches had

in their possession. Appellant acknowledges that “[n]either the [c]ourt

[d]ocket nor trial counsel’s file provided any written defense request for

informal discovery.” Id.4

4 Appellant also acknowledges that “the record is incomplete as to whether trial counsel ever conferred with the Commonwealth attorney since nothing appears on the record. The Commonwealth may be heard to argue that any further discovery was waived for failure to make a formal request for discovery.” Appellant’s Brief at 27.

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At trial, the following exchange occurred with respect to video

evidence:

[Defense Counsel:] OK, on the incident that you talked about, June 6th of 2010 when you said your-[Appellant] was on the dock, I believe.

[Bernard:] He was down on his waterfront on June-yeah.

[Defense Counsel:] Right, did you have any type of video or pictures of that incident?

[Bernard:] I didn’t take any videos and save any videos of that incident.

[Defense Counsel:] OK, and on this night on September 3rd of 2012, I believe you had testified earlier that there were approximately nine cameras in place on your residence?

[Bernard:] Approximately.

[Defense Counsel:] Maybe more, maybe less.

[Bernard:] There’s a couple more than that, I think.

[Defense Counsel:] And other than-this is the only video that we have of that night’s events? Out of the nine cameras, this is the one that you provided to the District Attorney’s Office, correct?

[Bernard:] This is the video that I provided to the District Attorney’s Office. I’m sorry I had so much blank space early on, but we have all the eye witnesses that saw what went on versus the video.

[Defense Counsel:] But this is the only video that was provided.

[Bernard:] This is the only video that was provided. That’s correct.

N.T., 10/21/2014, at 209-10.

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We set forth the following with respect to a Brady claim:

Under Brady[, supra,] and subsequent decisional law, a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued.

Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa. 2012).

Based on the foregoing, it is clear there was no Brady violation.

Appellant offers no evidence that the Commonwealth had additional video or

photographic evidence; therefore, he fails to show that any evidence was

“suppressed by the prosecution, either willfully or inadvertently[.]” Id.

Moreover, to the extent Appellant is claiming that counsel was ineffective for

failing to request this evidence, such a claim is not available to Appellant at

this juncture. See Commonwealth v. Holmes, 79 A.3d 862 (Pa. 2013)

(reaffirming that claims of ineffective assistance of trial counsel are deferred

for collateral review absent very narrow circumstances not relevant in this

case). Accordingly, we will not review Appellant’s ineffective-assistance-of-

counsel claim at this time.

We now turn to Appellant’s final two issues on appeal, both of which

implicate the discretionary aspects of his sentence. Generally, Appellant

argues that his aggravated range sentences are excessive and that the

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sentences that were imposed consecutively should have been run

concurrently. We address these claims mindful of the following:

It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.

Before [this Court may] reach the merits of [a challenge to the discretionary aspects of a sentence], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code…. [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

Appellant timely filed a notice of appeal. Appellant did not object to

his sentence during the sentencing hearing; however, he did seek

reconsideration of his sentence in his post-sentence motion. However,

Appellant’s brief does not contain a Pa.R.A.P. 2119(f) concise statement.

“[W]hen the appellant has not included a Rule 2119(f) statement and the

appellee has not objected, this Court may ignore the omission and

determine if there is a substantial question that the sentence imposed was

not appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua

sponte, i.e., deny allowance of appeal.” Commonwealth v. Kiesel, 854

A.2d 530, 533 (Pa. Super. 2004). Because the Commonwealth’s brief was

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filed extraordinarily late and was not considered, we will exercise our

discretion to review Appellant’s claim challenging the discretionary aspects

of his sentence. Commonwealth v. Stewart, 867 A.2d 589 (Pa. Super.

2005) (ignoring the failure to include a Pa.R.A.P. 2119(f) statement where

the Commonwealth did not file a brief).

Appellant sets forth a number of arguments which can be narrowed

down to two categories: 1) the trial court abused its discretion by sentencing

him to consecutive rather than concurrent sentences; and 2) the trial court

considered improper factors in sentencing him in the aggravated range.

“When determining whether a substantial question has been raised, we

have focused upon whether the decision to sentence consecutively raises the

aggregate sentence to, what appears upon its face to be, an excessive level

in light of the criminal conduct in this case.” Commonwealth v. Zirkle, 107

A.3d 127, 133-34 (Pa. Super. 2014). Here, we cannot say that the

aggregate term of incarceration is excessive in light of the criminal conduct

in this case; thus, we do not find a substantial question on this basis.5

However, we have held an “assertion that the sentencing court

considered improper factors in placing the sentence in the aggravated

range” raises a substantial question. Accordingly, we will review Appellant’s

5 We also note that the trial court’s consecutive sentences were for the stalking charge and the indecent exposure charge. The open lewdness count and two counts of disorderly conduct all arose from the same incident that led to the indecent exposure charge. The trial court sentenced Appellant concurrently on those four counts.

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claims as to the factors the trial court considered in imposing an aggravated-

range sentence. Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa.

Super. 2005).

In reviewing the decision of the sentencing court, our standard of review is well-settled:

Sentencing 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.

Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) (quotations and citations omitted). A sentencing court may consider any legal factor in determining that a sentence in the aggravated range should be imposed. In addition, the sentencing judge’s statement of reasons on the record must reflect this consideration, and the sentencing judge’s decision regarding the aggravation of a sentence will not be disturbed absent a manifest abuse of discretion.

Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009) (some

citations and quotations omitted).

For both stalking and indecent exposure, the standard-range sentence

was probation to one month of incarceration. The aggravated range for each

was four months of incarceration. Thus, Appellant’s sentence of four to

twelve months of incarceration for stalking and four to 11½ months of

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incarceration for indecent exposure were both aggravated-range sentences.

The trial court offered the following rationale.

The court finds that the sentence in this matter is in the aggravated range due to the following circumstances. [Appellant] has at no time before this court shown any remorse for the actions against the victims. Although he has apologized to the court, the court has noted he has never apologized to the victims in this matter. The court notes that [Appellant] has continued a course of conduct against the victims over a period of seven years. The court notes that during the trial, some of the actions of [Appellant] were before minor children. The court further notes that during the trial, [Appellant] continued the actions against the victims during his period of bail. The court further notes the serious nature of this offense and the effects that this offense has had upon the victims and the court notes that all of the above circumstances justify sentencing in the aggravated range. The court further notes that any lesser of a sentence in this matter would depreciate the seriousness of [Appellant’s] actions.

N.T., 1/14/2015, at 16-17.

Appellant first argues that the trial court abused its discretion by

relying on the fact that the course of conduct lasted for seven years when

that factor was already taken into account as an element of the crime of

stalking. Appellant’s Brief at 17. With respect to stalking, our Court has

offered the following.

Each time a stalker commits an act, as part of an established course of conduct, under circumstances demonstrating an intent to place the victim in fear of bodily injury or to cause the victim substantial emotional distress, the fear and emotional distress increases. The repetitiveness of stalking acts is indicative of the defendant’s unrelenting obsession with the victim and often reveals an escalation of violence. For these reasons, it is essential that each stalking act, which is included in an

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established course of conduct, be a separate offense, punishable with an individual sentence.

Commonwealth v. Leach, 729 A.2d 608, 612-13 (Pa. Super. 1999).

Based on the foregoing, we cannot say that the trial court abused its

discretion by considering the fact that the stalking lasted seven years. By its

own definition, each act could have been prosecuted as a separate count of

stalking. Here, Appellant was prosecuted only once; thus, it was proper for

the trial court to look at the fact that numerous incidents of stalking

occurred over a seven-year timeframe. Accordingly, Appellant is not entitled

to relief on this basis.

Appellant next argues that the trial court abused its discretion by

relying on Appellant’s “perceived lack of remorse.” Appellant’s Brief at 17.

Specifically, the trial court noted that Appellant apologized to the court at

sentencing, but did not apologize directly to the victims at that time. Lack of

remorse has long been considered a proper sentencing factor. See, e.g.,

Commonwealth v. Begley, 780 A.2d 605 (Pa. 2001); Commonwealth v.

Miller, 724 A.2d 895, 902 (Pa. 1999) (“[T]he demeanor of a convicted

defendant, including his apparent lack of remorse, is a proper consideration

in fixing the sentence for a non-capital offense.”). Accordingly, we discern

no abuse of discretion on this basis.

Appellant also argues that the trial court abused its discretion by

concluding that some of these actions “were before minor children.”

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Appellant’s Brief at 20. While we agree with Appellant that the indecent

exposure incident did not occur before minor children, there was testimony

to support the fact that the June 6, 2010 incident did occur in front of some

of the Razawiches’ grandchildren. Accordingly, the record supports the trial

court’s consideration of this factor in sentencing and Appellant is not entitled

Finally, Appellant argues that the record does not support the trial

court’s conclusion that Appellant “continued actions against the victims

during his period of bail.” Appellant’s Brief at 19. Instantly, Appellant’s bail

was set on June 27, 2013 and he was subject to the terms of bail, which

included no contact with the victims from that point forward.

Immediately after Appellant was convicted, the trial court heard

argument with respect to bail. N.T., 10/22/2014, at 345-54. The

Commonwealth argued for an increase in bail. Initially, the Commonwealth

conceded that there had been no bail violations, but then set forth the

following.

He hasn’t been charged with a violation for this, but there’s an incident that occurred where we believe [Appellant] was following Mr. Razawich down in Wilkes-Barre area because of photograph of Mr. Razawich’s vehicle down there was sent to Mr. Razawich’s employer with a letter signed by [Appellant], claiming that this truck cut him off and that he was ta[]king a picture of it and sending to his employer so there hasn’t been any charge filed in that, but the Commonwealth believes that that’s just further conduct. … He was obviously following Mr. Razawich.

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Id. at 347.6

Appellant responded that he did not know who was driving the truck;

that it is his practice to write down the license plate number and send a

letter to an employer if he sees erratic driving; and that he lives a block

from where this incident occurred. Id. at 351-52.

In light of this information, we conclude that the trial court’s reliance

upon continued actions by Appellant against the Razawiches while on bail

was a proper factor to consider and the trial court did not abuse its

discretion. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/16/2016

6 The transcript indicates that the truck showed the name of the company on it.

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