Commonwealth v. Melvin

• Decision Date: 06 November 2013
• Citation: 2013 PA Super 288,79 A.3d 1195
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joan Orie MELVIN, Appellant.
• Court: Pennsylvania Superior Court

79 A.3d 1195
2013 PA Super 288

COMMONWEALTH of Pennsylvania, Appellee
v.
Joan Orie MELVIN, Appellant.

Superior Court of Pennsylvania.

Application filed Sept. 24, 2013.
Filed Nov. 6, 2013.

[79 A.3d 1198]

Patrick A. Casey, Scranton, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BENDER, P.J., DONOHUE and FITZGERALD ^*, JJ.

OPINION BY DONOHUE, J.:

Appellant, Joan Orie Melvin (“Orie Melvin”), filed an Application for Stay of Criminal Sentence Requiring Appellant to Write Letters of Apology Pending Disposition of this Direct Appeal (hereinafter, the “Application for Stay”), in which she contends that the portion of her criminal sentence requiring her to write apology letters to the victims of her crimes violates her right against self-incrimination pursuant to the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. For the reasons that follow, we grant the requested stay.

On February 21, 2013, a jury convicted Orie Melvin of three counts of theft of services with a value greater than $2,000, 18 Pa.C.S.A. § 3926(b); one count of criminal conspiracy for promoting or facilitating theft of services, 18 Pa.C.S.A. §§ 903(a)(1), 3926(b); one count of misapplication of entrusted property valued at more than $50, 18 Pa.C.S.A. § 4113(a), (b); and one count of criminal conspiracy for promoting or facilitating the crime of tampering with physical evidence, 18 Pa.C.S.A. § 903(a)(1), § 4910. The trial court initially sentenced Orie Melvin on May 7, 2013, and modified the sentence on May 14, 2013. Pursuant to the sentencing transcript for the May 14, 2013 proceedings as well as a “Corrected Amended Order of Sentence” issued thereafter, Orie Melvin's sentence consists of, inter alia, three consecutive sentences of one year of county intermediate punishment (house arrest with electronic monitoring), to be followed by two years of probation. N.T., 5/14/2013, at 2–3; Corrected Amended Order of Sentence, 5/17/2013, at 1.

With respect to the county intermediate punishment, the trial court imposed a number of conditions, including an obligation to volunteer at a soup kitchen three times a week, compliance with DNA registration, removal from the bench of the Supreme Court of Pennsylvania, and a prohibition against the use of the terms “judge” or “justice.” Corrected Amended Order of Sentence, 5/17/2013, at 1. In addition, and of importance for present purposes, the trial court imposed as a condition of county intermediate punishment an obligation to write letters of apology to (1) all sitting judges and justices in Pennsylvania, and (2) all former members of her judicial staff and the staff of her sister, former state senator Jane Orie. Id. The trial court made clear that the letters of apology to judges and justices had to be written on the front of a picture taken of Orie Melvin by the court photographer while she was wearing handcuffs. N.T., 5/14/2013, at 5.

At the May 14 sentencing hearing, counsel for Orie Melvin argued that the obligation to write the apology letters would violate her Fifth Amendment right against self-incrimination, and asked the trial court to either rescind it or stay it until final judgment in the case. Id. at 8–9. The trial court responded that he “still believe[d] that it is not a Fifth Amendment problem,” but indicated that he would take it under advisement and issue an order within 10 days. Id. at 10–12. The trial court did not issue such an order, however,

[79 A.3d 1199]

and on September 27, 2013, Orie Melvin filed the Application for Stay ¹ requesting that this Court issue an order “staying the portion of her sentence requiring her to write a letter of apology pending disposition of her appeal to this Court.” Application for Stay, 9/27/2013, at 7.

Rule 1732 of the Pennsylvania Rules of Appellate Procedure governs applications for stays of trial court orders pending appeal. Rule 1732 provides, in relevant part, as follows:

Rule 1732. Application for Stay or Injunction Pending Appeal

(a) Application to lower court. Application for a stay of an order of a lower court pending appeal, or for approval of or modification of the terms of any supersedeas, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal, or for relief in the nature of peremptory mandamus, must ordinarily be made in the first instance to the lower court, except where a prior order under this chapter has been entered in the matter by the appellate court or a judge thereof.

(b) Contents of application for stay. An application for stay of an order of a lower court pending appeal, or for approval of or modification of the terms of any supersedeas, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal, or for relief in the nature of peremptory mandamus, may be made to the appellate court or to a judge thereof, but the application shall show that application to the lower court for the relief sought is not practicable, or that the lower court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the lower court for its action. The application shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the application shall be supported by sworn or verified statements or copies thereof. With the application shall be filed such parts of the record as are relevant. Where practicable, the application should be accompanied by the briefs, if any, used in the lower court.

Pa.R.A.P. 1732(a)-(b).

The Application for Stay complies with the technical requirements under Rule 1732, including the obligation to set forth a prior effort to obtain a stay from the trial court in the first instance. While it is true that the trial court never formally denied Orie Melvin's request for a stay,² we conclude that its inaction on the request for more than four months (from May 14 until September 27) constitutes an effective denial. We also note that toward the end of this four-month period, the trial court issued a written opinion pursuant to Pa.R.A.P. 1925(a), in which it explained at some length why the requirement to write apology letters did not violate Orie Melvin's right against self-incrimination. Trial Court Opinion, 9/12/2013, at 28–31. Accordingly, we proceed to review the merits of the Application for Stay.

[79 A.3d 1200]

To obtain a stay pursuant to Rule 1732, an applicant must

make a substantial case on the merits and show that without the stay, irreparable injury will be suffered. Additionally, before granting a request for a stay, the court must be satisfied the issuance of the stay will not substantially harm other interested parties in the proceedings and will not adversely affect the public interest.

Maritrans G.P., Inc. v. Pepper, Hamilton & Scheetz, 524 Pa. 415, 420, 573 A.2d 1001, 1003 (1990); see also Pa. Public Utility Comm'n v. Process Gas Consumers Grp., 502 Pa. 545, 552–54, 467 A.2d 805, 808–09 (1983) (adopting the standards set forth in Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259 F.2d 921 (D.C.Cir.1958), as refined by Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977), as the criteria of Pennsylvania courts for the issuance of a stay pending appeal).

With respect to the first requirement of the Maritrans test, namely that the applicant must make a substantial case on the merits, in her Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, Orie Melvin lists 21 alleged errors by the trial court. Two of these alleged errors relate to her sentence:

XX. The trial court erred in requiring Orie Melvin to write a letter of apology to her family, former staff, and Pennsylvania judges as part of her sentence in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.

XXI. The condition that Orie Melvin write a letter of apology to her family, former staff and Pennsylvania judges as part of her sentence is illegal under 42 Pa.C.S.A. § 9721 and should be stricken.

Orie Melvin's] Statement of Errors Complained of on Appeal Pursuant to Pa. R.App. P.1925(b), 6/13/2013, at 4. In the Application for Stay, Orie Melvin argues that requiring her to write letters of apology under threat of incarceration is “tantamount to a coerced confession and cannot be squared with the constitutionally mandated privilege against self-incrimination.” Application for Stay, 9/27/2013, at 5–6. She further asserts that “ordering a defendant to write a confession on a photograph of herself wearing handcuffs is both bizarre and abusive and plainly outside the scope of authority granted to a sentencing court under 42 Pa.C.S.A. § 9721.” Id.

For present purposes, we need not, and will not, determine whether the portion of Orie Melvin's sentence requiring apology letters is ultimately illegal, either on constitutional or statutory grounds. Those issues will be decided by the merits panel ruling on Orie Melvin's appeal. Instead, we focus on the more narrow issue of whether the apology letters potentially violate Orie Melvin's constitutional right against self-incrimination. solely during the pendency of this direct appeal.

The Fifth Amendment to the United States Constitution, as applied to the states via the Fourteenth Amendment, provides that no person “shall be compelled in any criminal case to be a witness against himself,” and Article 1, Section 9 of the Pennsylvania Constitution holds that the accused in a criminal prosecution “cannot be compelled to give evidence against himself.” U.S. Const. amend. V; Pa. Const. art. 1, § 9.³ The privilege against

[79 A.3d 1201

self-incrimination is “accorded liberal construction in favor of the right it was intended to secure,”...