Com. v. Anthony, B.

• Court: Superior Court of Pennsylvania
• Decided: August 20, 2021
• Docket: 1011 WDA 2020
• Status: Unpublished

Opinion

J-S19015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN ANTHONY : : Appellant : No. 1011 WDA 2020

Appeal from the Judgment of Sentence Entered April 15, 2020 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-MD-0000174-2020

BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.: FILED: AUGUST 20, 2021

Appellant Brian Anthony appeals from the Judgment of Sentence

entered April 15, 2020, following his conviction of indirect criminal contempt

(ICC) after he violated, for the third time, a Protection from Abuse (“PFA”)

Order. Appellant asserts the trial court erred in its timing of the ICC hearing

and abused its discretion in admitting certain evidence. He also challenges

the sufficiency of the evidence supporting this third ICC conviction. After

careful review, we affirm.

The relevant facts and procedural history are as follows. Appellant and

the victim had lived together as romantic partners for four years. On

December 17, 2019, the court entered a final PFA Order directing Appellant

not to have “ANY CONTACT” with the victim. Appellant subsequently violated

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* Retired Senior Judge assigned to the Superior Court. J-S19015-21

the PFA Order twice and the court sentenced him to a period of incarceration

of three to six months after the first violation, and a consecutive sentence of

six months after the second violation.

While serving his second ICC sentence, Appellant sent seven letters over

a period of 2½ weeks addressed to himself at the victim’s address. The victim

did not open the letters. On March 27, 2020, she filed an ICC Complaint

alleging Appellant had again violated the PFA Order. Appellant appeared

before a magistrate on March 31, 2020, and signed a hearing notice informing

him that the court had scheduled the hearing on this third ICC Complaint for

April 15, 2020.

At the start of the hearing on April 15, 2020, Appellant’s counsel

requested that the court dismiss the matter because the hearing date was

more than ten days after the filing of ICC Complaint, in violation of 23 Pa.C.S.

§ 6113. The court denied counsel’s request, noting that (1) the scheduling of

the hearing was a direct result of the COVID-19 pandemic; (2) all time frames

then in existence “under any statutory provision” had been suspended by the

Pennsylvania Supreme Court’s Emergency Judicial Order and the Erie County

Court of Common Pleas’ COVID Emergency Judicial Order; and (3) Appellant

had not suffered prejudice because he was currently in jail serving his second

ICC sentence.

The ICC hearing proceeded. The victim testified that between March

11, 2020, and April 6, 2020, seven letters arrived at her residence from

Appellant that were addressed to Appellant, with notation in the return

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address of Appellant’s name and prison identification number. The court

admitted the unopened envelopes with no objection from Appellant. See N.T.

Hr’g, 4/15/2020, at 12. The victim testified, inter alia, that Appellant was no

longer on the home’s lease, and that after living with Appellant for four years,

she easily identified the handwriting on the envelopes as belong to Appellant

and not to a third party.1 Her testimony concluded after she stated on cross-

examination that she did not open the letters because they were not

addressed to her. The prosecution then conducted a brief re-direct

examination.

After the victim testified, the court asked if either party had “a desire”

to open the letters to read their contents since they had been admitted as a

government exhibit. Id. at 18. Appellant’s counsel argued that the sole basis

of the ICC Complaint was that the envelopes were sent and the contents were,

therefore, irrelevant. The court noted counsel’s relevancy objection and

informed the parties that they were authorized to open the letters “[i]f either

party believes that they’re evidence that they’d want to submit.” Id. The

court directed that the letters were not to be shown or read to the victim. Id.

at 18, 21, 23. The court also informed the prosecutor that there was still an

outstanding relevancy objection which he would be required to address if he

believed the contents were relevant. Id. at 18-19, 22. Appellant’s counsel

1 The victim testified that when she received envelopes addressed to Appellant

from third parties, she would return them to the sender.

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again objected to the relevance of the letters’ contents, in addition to objecting

based on a lack of foundation and the authenticity of the letters. Id. at 22.

After counsel for both parties reviewed the letters, the Commonwealth

stated that portions of the letters were relevant to demonstrate that Appellant

intended to harass and threaten the victim. Appellant’s counsel renewed his

relevancy objection, which the court overruled. The court then dismissed the

victim.

The prosecutor then stated it had no other witnesses but asked if the

court would allow him to read the contents of some of the letters into the

record. The court denied the request, noting that the letters and the

envelopes had been admitted “so they are as they are,” and informed the

prosecutor: “I’ll let you[] argue at the end how it may be relevant if we get to

that point.” Id. at 24. The court then asked if Appellant wanted to present

any witnesses or testimony. Appellant’s counsel replied “no,” and the court

directed defense counsel to present his closing argument first. Id. at 24.

Counsel argued only that the Commonwealth “has not been able to tie

beyond a reasonable doubt that my client was the sender . . . of the envelopes

in this case . . . [s]o I would argue that there’s been no contact proven by the

Commonwealth and there’s no indirect criminal contempt proven.” Id. at 25.

During its closing, the Commonwealth, inter alia, read some of the letters to

the court to highlight content that was specifically directed to the victim and

contained abusive and threatening language.

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The court concluded that Appellant had volitionally sent the seven

envelopes within a short period of time with the intent to harass the victim in

violation of the provision of the PFA directing that he have no contact with the

victim. The court also found that Appellant had “engag[ed] in a course of

conduct including harassing, stalking type behavior,” and noted that it had

considered the content of the letters to address Appellant’s challenge “that

the letters may not have been directed to [the victim] or cannot be attributed

to him.” Id. at 33-34.

The court initially sentenced Appellant to a consecutive term of six

months’ imprisonment, but subsequently granted Appellant’s Post-Sentence

Motion for modification of sentence and sentenced him to a term of three to

six months’ incarceration to run consecutive to the prior ICC sentence. The

court also required Appellant to complete drug and alcohol and mental health

assessments so he can address his mental health issues. See Order and

Opinion on Motion for Reconsideration, 7/10/2020, at 12-13.

Appellant appealed. Both Appellant and the court complied with

Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. The trial court erred in ruling that the [Appellant’s] case should not have been dismissed when the hearing was not scheduled within ten days of the filing of the charge or complaint of indirect criminal contempt, according to 23 Pa.C.S. § 6113(f).

2. The trial court erred in opening envelopes that were addressed to [Appellant], when the contents thereof were not used as the basis of the charges filed in this case.

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3. The evidence presented in this case was insufficient to support the charge of indirect criminal contempt when the letters produced as evidence of the harassment of the victim were addressed to [Appellant] and not to the victim.

Appellant’s Br. at 3.

“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, 720-721 (Pa. Super. 1998) (en

banc) (citations omitted). See generally 23 Pa.C.S. §§ 6101-6122

(Protection from Abuse Act).

We review a contempt conviction for a “plain abuse of discretion.”

Commonwealth v. Haigh, 874 A.2d 1174, 1177 (Pa. Super. 2005) (citation

omitted). We give great deference to the trial court’s findings. Id. at 1176.

Our review is, thus, confined to a determination of whether the facts support

the trial court’s decision. Id. at 1177.

Issue 1 – Timing of Hearing on ICC Complaint

In his first issue, Appellant contends that the trial court should have

dismissed the case because the hearing was not held within ten days of the

filing of the ICC Complaint. Appellant’s Br. at 6-8, citing 23 Pa.C.S. §§

6107(a), 6113(f). We disagree.

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“[A]s with those accused of other crimes, one charged with indirect

criminal contempt is to be provided the safeguards which statute and criminal

procedures afford.” Baker, 722 A.2d at 720 (citation omitted). Thus, the PFA

Act provides that when an individual is charged with indirect criminal

contempt, “[a] hearing shall be scheduled within ten days of the filing of the

charge or complaint of indirect criminal contempt.” 23 Pa.C.S. § 6113(f)

(emphasis added).

Section 6107(a) of the PFA Act provides that when a complainant first

seeks a PFA order, “a hearing shall be held before the court” within ten

business days of the filing of the petition[.]” 23 Pa.C.S. § 6107(a) (emphasis

added). On the other hand, and relevant here, Section 6113(f) provides that,

after a court has issued a PFA order and the subject against whom the order

is directed violates the order, “[a] hearing shall be scheduled within ten days

of the filing of the charge or complaint of indirect criminal contempt.” 23

Pa.C.S. § 6113(f) (emphasis added). See, e.g., Stamus v. Dutcavich, 938

A.2d 1098 (Pa. Super. 2007) (finding the court erred when it issued a rule to

show cause rather than scheduling a contempt hearing after police filed an

ICC complaint against the appellant).

In Commonwealth v. Ortiz, 802 A.2d 617 (Pa. Super. 2002), the trial

court scheduled a hearing four days after the police officer filed the contempt

charges but did not hold a hearing within ten days. The court dismissed the

charges after concluding it had violated Section 6113(f). This Court reversed

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the dismissal, holding that “a court satisfies the requirements of Section

6113(f) when it schedules, but not necessarily holds, the hearing within ten

days of the filing of the charge or complaint.” Id. at 619 (emphasis added).

The trial court here, relying on Ortiz, supra, concluded that it had

properly scheduled the hearing in accordance with Section 6113(f).

Specifically, it observed:

The use of “scheduled” in Section 6113(f) as compared to the use of “held” in Section 6107(a) strongly suggests that the General Assembly intended “scheduled” to mean only that the proceeding be set for a hearing date within ten days, not that the proceeding need actually occur within ten days; if the General Assembly had desired such a result, it knew how to do so unambiguously by directing that such a proceeded shall be held within that period, just as it did in Section 6107(a).

Trial Ct. Op., dated 2/18/21, at 7-8.

We agree with the trial court’s reasoning and analysis. On March 31,

2021, four days after the victim filed the ICC Complaint, the court scheduled

the hearing for April 15, 2021. As in Ortiz, supra, the scheduling, thus,

occurred within the ten-day window provided by Section 6113(f). Accordingly,

Appellant’s first issue garners no relief.

Issue 2 – Court’s admission of the contents of the unopened envelopes

Appellant next asserts that the trial court improperly acted as an

advocate when, after the victim testified, it allowed the prosecutor to open

the envelopes. Appellant’s Brief at 9. He contends that because neither the

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victim nor the Commonwealth had opened the letters prior to the hearing,

their contents were not relevant to the allegations in the ICC Complaint.

When presented with challenges to the admission of evidence, our

standard of review is well-settled. “Admission of evidence is within the sound

discretion of the trial court and we review the trial court’s determinations

regarding the admissibility of evidence for an abuse of discretion.” Czimmer

v. Janssen Pharms., Inc., 122 A.3d 1043, 1058 (Pa. Super. 2015). To

reverse an evidentiary ruling, “it must not only be erroneous, but also harmful

or prejudicial to the complaining party.” Id. We presume that the trial court

acting as the fact-finder in a bench trial “know[s] the law, ignore[s] prejudicial

statements, and disregard[s] inadmissible evidence.” Commonwealth v.

McFadden, 156 A.3d 299, 309 (Pa. Super. 2017) (citation omitted).

Only competent and relevant evidence is admissible at trial. Czimmer,

supra, at 1058; Pa.R.E. 402. “Evidence is competent if it is material to the

issue to be determined at trial. Evidence is relevant if it tends to prove or

disprove a material fact.” Czimmer, supra, at 1058. See also Pa.R.E. 401

(providing that “evidence is relevant if[ ] it has any tendency to make a fact

more or less probable than it would be without the evidence; and [ ] the fact

is of consequence in determining the action.”). Further, “[r]elevant evidence

is admissible if its probative value outweighs its prejudicial impact.”

Czimmer, supra, at 1058.

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Relevant evidence will be considered unfairly prejudicial, and thus

inadmissible, if it has “a tendency to suggest decision on an improper basis or

to divert the [factfinder’s] attention away from its duty of weighing the

evidence impartially.” Id.

Preliminarily, we reject Appellant’s characterization of the trial court’s

actions as advocacy. Contrary to the Appellant’s contention, the trial judge

did not open the letters himself and “did not sua sponte direct that the letters

be opened and their contents revealed, as suggested by [Appellant.]” Tr. Ct.

Op. dated 2/18/21, at 13. Rather, the court stated that because the envelopes

had been admitted as Commonwealth exhibits, the court gave its permission

to open them “should either party desire it.” Id. at 13. See also N.T. at 18.

In addition, the court clearly informed the parties at the end of the

hearing of its limited consideration of the contents of the letters. Specifically,

the court stated:

[F]or purposes of my decision here today the content of the letters is considered for one reason exclusively and that is to the extent that the defendant has challenged here today, he has[,] through the arguments of counsel, [asserted] that the letters may not have been directed to [the victim] or cannot be attributed to him. The [c]ourt finds specifically that the content of those letters . . . in their reference to [the victim], referring to her talking about things that she did, satisfy the [c]ourt that [Appellant] and no one other than [Appellant] was the author of those letters and they’ve been sufficiently attributed to him[.]

N.T. at 33-34.

We see no abuse of discretion in the trial court’s overruling Appellant’s

relevancy objection to the opening of the letters. Regardless of the substance

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of the letters, the letters clearly established that Appellant was, in fact, the

sender. Moreover, the letters corroborated the victim’s testimony that the

handwriting belonged to Appellant and provided clear corroborating evidence

that he intended to violate the PFA. Further, our review indicates that the

contents of the letters did not “divert the fact-finder’s attention away its duty

of weighing the evidence impartially.” Czimmer, supra, at 1058.

Accordingly, this issue merits no relief.2

Issue 3 - Sufficiency of the Evidence

Appellant next asserts that because the letters were addressed to him,

not the victim, at an address he had once lived, and the Commonwealth

presented only the victim’s testimony and “no further analysis of the

handwriting on the envelope[s]” beyond the victim’s testimony “that she had

lived with [Appellant] and thus knew his handwriting,” the verdict is not

supported by sufficient evidence. Appellant’s Brief at 10, 12. He also

concludes that his conduct was “de minimis and non-threatening” because

2 Appellant summarily states “[i]t is unclear whether he would have chosen to

testify or whether his attorney would have changed any of his cross examination questions or strategies … had he known about the contents of the letters and had notice of those contents prior to the trial.” Appellant’s Br. at 9. Appellant’s vague statement invites this Court to infer that he suffered unfair prejudice because the court allowed the letters to be opened. Because Appellant fails to develop an argument with any analysis or any citation to relevant authority to support his statement, we decline his invitation and conclude he has waived any argument he may have had regarding prejudice he may have suffered.

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“the alleged victim did not open the letters, so she could not have been

‘harassed’ by them, as she did not know what the content of the letters were.”

Appellant’s Brief at 11-12.3

Our standard of review is well-settled. We review a challenge to the

sufficiency of the evidence to determine whether, when viewed in a light most

favorable to the verdict winner, the evidence at trial and all reasonable

inferences therefrom is sufficient for the trier of fact to find that each element

of the crimes charged is established beyond a reasonable doubt.

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

Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial evidence.” Id.

at 109-110 (citation omitted).

3 Appellant relies on Commonwealth v. Haigh, 874 A.2d 1174 (Pa. Super.

2005), to support his claim that his conduct was “de minimis and non- threatening.” Appellant’s Brief at 11. In Haigh, a shackled husband appeared at an ICC hearing to plead guilty to two PFA violations, and asked the complainant, his wife of 31 years who had recently been diagnosed with cancer, how she was doing. The trial court found this inquiry to be a third violation of the PFA Order that had directed him to have no contact with her “at any location.” On appeal, this Court concluded that under the particular circumstances—i.e., at a location where the parties had to be present for a hearing, in the presence of the judge, prosecutor, and armed deputy sheriffs, among others—Appellant did not act in a threatening manner with wrongful intent to violate the PFA. Rather, he was acting out of concern for the health of his wife of 31 years. This Court characterized this contact as “de minimis and non-threatening,” and concluded that the trial court abused its discretion in finding the appellant guilty of ICC. Haigh is factually distinct from the instant case. It, thus, provides no support for Appellant’s sufficiency challenge.

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“As an appellate court, we do not assess credibility nor do we assign

weight to any of the testimony of record.” Commonwealth v. Von Evans,

163 A.3d 980, 983 (Pa. Super. 2017) (citation omitted). “Therefore, we will

not disturb the verdict 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.” Id. “We will reverse a trial court’s determination only when

there has been a plain abuse of discretion.” Commonwealth v. Kolansky,

800 A.2d 937, 939 (Pa. Super. 2002).

To establish indirect criminal contempt of a PFA Order, “the

Commonwealth must prove: 1) the Order was sufficiently definite, clear, and

specific to the contemnor as to leave no doubt of the conduct prohibited; 2)

the contemnor had notice of the Order; (3) the act constituting the violation

must have been volitional; and 4) the contemnor must have acted with

wrongful intent.” Brumbaugh, 932 A.2d at 110.

Here, the trial court found that the Commonwealth had established each

of the above elements. At the conclusion of the hearing, the court found (1)

“based upon the testimony, . . . first that there is a … protection from abuse

order that is clear and specific in its terms;” (2) that Appellant “has been on

notice of those terms and specifically, as required in the protection from abuse

order, is to have no contact whatsoever with [the victim];” (3) “beyond a

reasonable doubt that [Appellant] sent these letters to the victim in this case

[ ] as a volitional act in violation of the protection from abuse order; and (4)

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“that he did so with wrongful intent.” N.T. at 33. The court also found “beyond

a reasonable doubt, based upon the testimony of [the victim] that these

letters sent from the Erie County prison came from [Appellant]; that “they

were addressed to the location where [the victim] was located; and they

specifically violate the provision of the protection from abuse order requiring

[Appellant] to have no contact whatsoever with [the victim].” Id. The court

further found that “the series of letters, seven of them marked as exhibits

here today, show [Appellant] engaging in a course of conduct including

harassing, stalking type behavior” and for “all those reasons [Appellant] is

guilty of indirect criminal contempt.” Id.

We have reviewed the evidence in a light most favorable to the

Commonwealth as the verdict winner, and all reasonable inferences drawn

therefrom, and conclude the evidence sufficiently established each element of

ICC beyond a reasonable doubt. It is undisputed that Appellant was aware of

the PFA Order and, after having twice violated the Order for similar reasons,

knew that the Order clearly and specifically informed him that he was to have

no contact at all with the victim. Further, evidence found credible by the court

established that Appellant volitionally sent the letters to the victim’s address.

Finally, as reasonably inferred from the number of letters sent within a short

period of time, i.e., 7 letters within 2 weeks, Appellant’s intent was to harass

and cause the victim to feel unsafe in her home. Accordingly, Appellant’s

sufficiency challenge fails to garner relief.

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Having found no merit to any of Appellant’s issues raised in this appeal,

we affirm his Judgment of Sentence.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2021

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