J-S17022-23
2023 PA Super 164
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY JOHN BARTIC : : Appellant : No. 32 WDA 2022
Appeal from the Judgment of Sentence Entered November 19, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-MD-0004351-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY BARTIC : : Appellant : No. 33 WDA 2022
Appeal from the Judgment of Sentence Entered November 19, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-MD-0003877-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY BARTIC : : Appellant : No. 34 WDA 2022
Appeal from the Judgment of Sentence Entered November 19, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-MD-0004352-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : J-S17022-23
v. : : : TIMOTHY BARTIC : : Appellant : No. 35 WDA 2022
Appeal from the Judgment of Sentence Entered November 19, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-MD-0001798-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY JOHN BARTIC : : Appellant : No. 36 WDA 2022
Appeal from the Judgment of Sentence Entered November 19, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-MD-0003875-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY BARTIC : : Appellant : No. 37 WDA 2022
Appeal from the Judgment of Sentence Entered November 19, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-MD-0003876-2021
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
OPINION BY OLSON, J.: FILED: September 12, 2023
-2- J-S17022-23
In this consolidated appeal,1 Appellant, Timothy Bartic, appeals from the
November 19, 2021 judgments of sentences entered in the Court of Common
Pleas of Allegheny County that imposed an aggregate sentence of 1 to 2 years’
incarceration, to be followed by 1 year of probation, after the trial court found
Appellant guilty of six instances of indirect criminal contempt.2 Appellant’s
____________________________________________
1 Appellant filed a separate notice of appeal at each trial court docket in compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and its progeny, as well as Pennsylvania Rule of Appellate Procedure 341. See Pa.R.A.P. 341 Comment.
On February 8, 2022, this Court, in a per curiam order, consolidated Appellant’s six appeals sua sponte.
2 23 Pa.C.S.A. § 6114.
At trial court dockets CP-02-MD-1798-2021 (“CP-1798”), CP-02-MD-3875-2021 (“CP-3875”), CP-02-MD-3876-2021 (“CP-3876”), and CP-02-MD-3877-2021 (“CP-3877”), the trial court imposed an individual sentence at each docket of 3 to 6 months’ incarceration. The sentence at CP-3877 was set to run consecutively to the sentence at CP-3876. The sentence at CP-3876 was set to run consecutively to the sentence at CP-3875. The sentence at CP-3875 was set to run consecutively to the sentence at CP-1798. At CP-1798, the trial court awarded Appellant a credit of 9 days (May 5, 2021 to May 13, 2021) for time served. At CP-3876, the trial court awarded Appellant a credit of 21 days (July 1, 2021 to July 21, 2021) for time served. At CP-3877, the trial court awarded Appellant a credit of 27 days (September 12, 2021 to October 8, 2021) for time served.
At trial court dockets CP-02-MD-4351-2021 (“CP-4351”) and CP-02-MD-4352-2021 (“CP-4352”), the trial court imposed an individual sentence at each docket of 6 months’ probation. The sentence at CP-4352 was set to run consecutively to the sentence at CP-4351. See N.T., 11/19/21, at 29. The term of probation imposed at CP-4351 was set to run consecutively to the term of incarceration imposed at CP-3877.
-3- J-S17022-23
indirect criminal contempt convictions stemmed from his violation of a final
protection from abuse (“PFA”) order issued pursuant to the Protection from
Abuse Act (“PFAA”), 23 Pa.C.S.A. §§ 6101 to 6122, on six separate occasions.
We affirm Appellant’s judgments of sentence but remand this case to allow
the trial court to correct a clerical error in the sentencing order at CP-4352 in
accordance with this opinion.
“A final [PFA] order was issued against [Appellant] on November 12,
2020[,] in which he was prohibited from having contact with [the victim] and
specifically precluded [] from her residence.” Trial Court Opinion, 10/28/22,
We note that the sentencing order at CP-4352 states that the term of probation (6 months) was set to run concurrently to the term of probation imposed at CP-4351. A review of the notes of testimony from the sentencing hearing reveals that the trial court ordered that the term of probation at CP-4352 was to run consecutively to the term of probation imposed at CP-4351. N.T., 11/19/21, at 29 (stating, “[a]t the last two violations [(CP-4352 and CP-4351)], we’re going to place you on a period of probation of six months, they will run consecutive[ly] to each other and consecutive[ly] with the periods of incarceration”). In situations where the written sentencing order differs from the sentence orally announced by the trial court at the time of sentencing, this Court has held that a written sentencing order which differs from the “trial court’s intentions [that] are clearly and unambiguously declared during the sentencing hearing [demonstrates] a ‘clear clerical error’ on the face of the record[ and is] subject to later correction.” Commonwealth v. Borrin, 12 A.3d 466, 473 (Pa. Super. 2011); see also Commonwealth v. Kremer, 206 A.3d 543, 548 (Pa. Super. 2019) (stating, “the signed, written sentencing order controls, where the sentencing transcript is ambiguous; the ambiguity in the transcript must be resolved by reference to the signed, written sentencing order” (citation omitted)). Here, the trial court at the sentencing hearing clearly and unambiguously declared that it intended the two terms of probation to run consecutively. As such, the written sentencing order at CP-4352 contains a “clear clerical error.” In light of our disposition herein, a remand to correct this clear clerical error is necessary.
-4- J-S17022-23
at 1. Appellant violated the PFA order on November 25, 2020 (CP-3875), May
4, 2021 (CP-1798), June 30, 2021 (CP-3876), September 1, 2021 (CP-3877),
October 12, 2021 (CP-4352), and October 13, 2021 (CP-4351).3 On
November 19, 2021, the trial court found Appellant guilty of six instances of
indirect criminal contempt for violating the PFA order on the aforementioned
dates. That same day, the trial court sentenced Appellant as detailed supra.
On November 29, 2021, Appellant filed a post-sentence motion, requesting
3 The trial court summarized the incidents in which Appellant violated the PFA
order as follows:
[O]n November 25, 2020, [Appellant] enter[ed the protected victim’s] residence, the police were notified[,] and [Appellant] was subsequently arrested. On May 4, 2021, [Appellant] tampered with [the protected victim’s] vehicle in order [to] prevent her from leaving her residence. The police were contacted[,] and [Appellant] was arrested. On June 30, 2021, [Appellant] was involved in an altercation at [the protected victim’s] home [involving] their children in which [Appellant] was again arrested. On September 1, 2021, [Appellant] was involved in another altercation with one of their children at [the protected victim’s] home, in which he was arrested. On October 12, 2021, [Appellant] contacted [the protected victim] and told her that he was coming over to her home and that he intended on using the shower facilities within the home. [The protected victim] reported this incident to the police. Soon thereafter[, the protected victim] arrived home with their son[,] and the son believed that he [saw Appellant] in the [backyard] of the home. Once again[, the protected victim] contacted the police. Early the next morning on October 13, 2021, [the doorbell at the protected victim’s home] rang around 3:00 a.m. She contacted the police who thereafter found [Appellant] in the [backyard] of the home hiding behind a tree stump.
Trial Court Opinion, 10/28/22, at 2-3.
-5- J-S17022-23
the trial court reconsider its sentences. The trial court denied Appellant’s
post-sentence motion on December 7, 2021. This appeal followed.4
Appellant raises the following issue for our review:
Did the trial court err by imposing an aggregate sentence of one to two years of incarceration, followed by [one year] of probation, which is manifestly excessive, unreasonable, and contrary to the dictates of the Sentencing Code? Specifically, did the [trial] court fail to consider the rehabilitative needs of [Appellant] as required by 42 Pa.C.S.[A.] § 9721(b), fail[] to consider the non-violent nature of the offenses[,] and ignore[ Appellant’s] stated interest in treatment?
Appellant’s Brief at 8.
Appellant’s issue challenges the discretionary aspects of his sentence,
arguing that the trial court abused its discretion when it imposed a manifestly
excessive sentence without considering Appellant’s rehabilitative needs or the
non-violent nature of the offenses and failed to set forth, in open court, the
reasons for its sentence, as is required by Section 9721(b) of the Sentencing
Code. Id. at 8, 14-16.
Preliminarily, we must address whether Appellant is permitted, pursuant
to Section 9781(b) of the Sentencing Code,5 to petition this Court for
4 Both Appellant and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
5 Section 9781(b) of the Sentencing Code provides, in relevant part, that “[a]
defendant . . . may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals . . . .”
-6- J-S17022-23
allowance of appeal to challenge the discretionary aspects of his sentence.6
In other words, does Section 9781(b) of the Sentencing Code apply to appeals
from sentences imposed pursuant to Section 6114 of the PFAA?
This inquiry requires the interpretation of statutes and, thus, raises a
question of law for which our standard of review is de novo and our scope of
review is plenary. Commonwealth v. McMullen, 961 A.2d 842, 846 (Pa.
2008). When our review involves statutory interpretation, we are
ever-mindful that our review is governed by the Statutory Construction Act of
1972, 1 Pa.C.S.A. § 1501 et seq., “under which our paramount interpretative
task is to give effect to the intent of our General Assembly in enacting the
particular legislation under review.” Commonwealth v. Wright, 14 A.3d
798, 814 (Pa. 2011); see also 1 Pa.C.S.A. § 1921(a) (stating, “The object of
all interpretation and construction of statutes is to ascertain and effectuate
the intention of the General Assembly. Every statute shall be construed, if
possible, to give effect to all its provisions.”).
Generally, the best indication of the General Assembly's intent may be found in the plain language of the statute. In this regard, it is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include. ____________________________________________
6 We embark on this analysis in light of our prior decisions in Wagner v. Wagner, 564 A.2d 162 (Pa. Super. 1989) and Commonwealth v. Marks, 268 A.3d 457 (Pa. Super. 2021), which, as discussed more fully infra, held that certain provisions of the Sentencing Code, namely Section 9756, which requires a trial court to specify both a minimum term and a maximum term of incarceration as part of its sentence, were not applicable to sentences imposed upon conviction of indirect criminal contempt pursuant to Section 6114. See Wagner, 564 A.2d at 164; see also Marks, 268 A.3d at 461.
-7- J-S17022-23
Consequently, as a matter of statutory interpretation, although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say.
Wright, 14 A.3d at 814 (citations, quotation marks, and brackets omitted).
The PFAA is unique in the sense that a PFA proceeding is initiated by an
individual, and not the Commonwealth, as is the case with criminal matters
under the Crimes Code, 18 Pa.C.S.A. §§ 101 et seq. Therefore, a PFA
proceeding is civil in nature. In the simplest of terms, the primary objective
of the PFAA is to prevent abuse and provide a means by which a victim of
abuse can seek redress and protection.7 The enforcement of a PFA order,
through a finding by the trial court of indirect criminal contempt pursuant to
Section 6114,8 on the other hand, is criminal in nature because the
Commonwealth is required to prove the elements of the indirect criminal
contempt,9 and the statutorily prescribed punishment for a violation of a PFA
7 Section 6106(a) of the PFAA states that, “[a]n adult or an emancipated minor
may seek relief under this chapter for that person . . . by filing a petition with the court alleging abuse by the defendant.” 23 Pa.C.S.A. § 6106(a). As this Court recently explained, “the [PFAA is] meant to address spousal and child abuse, and its goal is to prevent future abuse rather than impose punishment for past abuse.” Marks, 268 A.3d at 459.
8 Section 6114(a) of the PFAA states that, “[w]here the police, sheriff[,] or the
plaintiff have filed charges of indirect criminal contempt against a defendant for violation of a [PFA] order . . . the [trial] court may hold the defendant in indirect criminal contempt and punish the defendant in accordance with law.” 23 Pa.C.S.A. § 6114(a).
9 As our Supreme Court has stated:
-8- J-S17022-23
order may include, inter alia, incarceration or probation.10 See
Commonwealth v. Charnik, 921 A.2d 1214, 1217 (Pa. Super. 2007)
(stating, “PFAA proceedings are initiated in [an] effort to stop [the]
perpetration of abuse and are civil in nature, while the indirect criminal
contempt actions are criminal in nature and seek punishment for [a] violation
of a protective order” (emphasis omitted)); see also Wagner, 564 A.2d at
163 (stating that, “finding an individual in contempt of a PFA order involve[s]
a proceeding that is criminal in nature” while the PFAA, overall, “has its roots
in equity and is essentially civil”); Commonwealth v. Falkenhan, 452 A.2d
750 (Pa. Super. 1982) (stating, “[c]riminal contempt of court is a crime”). A
finding of indirect criminal contempt “is unlike other substantive crimes,” such
as third-degree murder, robbery, or aggravated assault, where the Legislature
has declared and defined what acts are crimes and prescribed the punishment
Indirect criminal contempt is a violation of a court order that occurred outside the court's presence. To prove indirect criminal contempt, evidence must be sufficient to establish: the court's order was definite, clear, specific, and leaving no doubt in the person to whom it was addressed of the conduct prohibited; the contemnor had notice of the order; the act constituting the violation was volitional; and the contemnor acted with wrongful intent.
McMullen, 961 A.2d at 849 (citations omitted).
10 “A sentence for [indirect criminal] contempt under [the PFAA] may include[,
inter alia,] a fine of not less than $300[.00] nor more than $1,000[.00] and imprisonment up to six months[, or] a fine of not less than $300[.00] nor more than $1,000[.00] and supervised probation not to exceed six months[.]” 23 Pa.C.S.A. § 6114(b)(1)(i)(A) and (B).
-9- J-S17022-23
for the commission of the crime.11 McMullen, 961 A.2d at 849. Instead,
indirect criminal contempt, while classified as a “crime,” or perhaps better
referred to as a “quasi-crime,” is an offense against a court’s inherent
authority to enforce its orders, and not necessarily against the public, as is
the case with substantive criminal acts as defined by the Crimes Code. Id. at
849-850. The court’s power to impose summary punishment12 for acts of
indirect criminal contempt is “a right inherent in courts and is incidental to the
grant of judicial power under Article 5 of [the Pennsylvania] Constitution.” Id.
at 849.
Because of the quasi-civil/quasi-criminal nature of the PFAA,
proceedings thereunder do not require the full panoply of rights afforded a
criminal defendant. Marks, 268 A.3d at 459 (stating, “[w]hile a [PFAA]
11 While the Crimes Code “abolished common law crimes,” (see 18 Pa.C.S.A
§ 107(b) (stating, “Common law crimes abolished. - No conduct constitutes a crime unless it is a crime under this title or another statute of this Commonwealth” (emphasis in original))), courts retain the power, inter alia, “to punish for contempt.” See 18 Pa.C.S.A. § 107(c); see also McMullen, 961 A.2d at 849.
12 “Summary punishment” may include a fine or term of incarceration, or both.
Because the power of punishment for indirect criminal contempt is inherent in the court’s authority to enforce its order, the Legislature may not restrict the court’s authority by legislatively providing maximum penalties. McMullen, 961 A.2d at 850. A court should, however, be mindful that if the term of incarceration exceeds six months, certain procedural rights, i.e. right to a trial by jury, may become available to an accused. Id. at 847.
We recognize that the legislatively prescribed punishments set forth in Section 6114(b) of the PFAA are inconsistent with our Supreme Court’s holding in McMullen, as more fully discussed infra.
- 10 - J-S17022-23
proceeding is criminal in nature, it does not receive all of the protections that
regular criminal proceedings receive”). An individual accused of indirect
criminal contempt under the PFAA is “entitled to the essential procedural
safeguards that attend criminal proceedings generally” including, inter alia,
the right to be notified of the allegations, the right to prepare a defense and
be heard, the right to assistance of counsel, and the requirement that the
Commonwealth prove every element of the offense beyond a reasonable
doubt. Cipolla v. Cipolla, 398 A.2d 1053, 1056 (Pa. Super. 1979); see also
Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007)
(stating, “[a]s with those accused of any crime, one charged with indirect
criminal contempt is to be provided the safeguards which [statutory] and
criminal procedures afford” (original quotation marks and citation omitted)).
The accused, however, does not enjoy the right to a preliminary hearing, the
right to a jury trial, or the requirement that the term of incarceration include
both a minimum and a maximum sentence.13 Wagner, 564 A.2d at 163; see
also Marks, 268 A.3d at 459.
With these understandings of an indirect criminal contempt conviction
under the PFAA in mind, we return to the question of whether Section 9781(b) ____________________________________________
13 “The right to a jury trial under the Sixth Amendment to the United States
Constitution and Article I, §§ 6, 9 of the Pennsylvania Constitution applies when a criminal defendant faces a sentence of imprisonment exceeding six months.” McMullen, 961 A.2d at 847. It is conceivable, that if a trial court were to impose a term of incarceration exceeding six months for a conviction of indirect criminal contempt that the defendant would be entitled to a jury trial.
- 11 - J-S17022-23
is applicable to a sentence imposed under Section 6114(b) because Section
9781(b) of the Sentencing Code is the statutory authority for challenges
targeting the discretionary aspects of a sentence. In relevant part, Section
9781(b) states that “[a] defendant or the Commonwealth may file a petition
for allowance of appeal of the discretionary aspects of a sentence for a felony
or a misdemeanor to the appellate court that has initial jurisdiction for such
appeals.” 42 Pa.C.S.A. § 9781(b) (emphasis added).
The offense of indirect criminal contempt is not specifically classified by
the PFAA as, for example, a felony, misdemeanor, or summary offense. See
23 Pa.C.S.A § 6114. Therefore, we turn to Section 106 of the Crimes Code,
which delineates the various classes of offenses, for guidance. Section 106(d)
of the Crimes Code states, “[a]ny offense declared by law to constitute a
crime, without specification of the class thereof, is a misdemeanor of the
second degree, if the maximum sentence does not make it a felony under this
section.” 18 Pa.C.S.A. § 106(d) (emphasis added). The lowest “class” of a
felony offense is a felony of the third degree, which has a maximum term of
imprisonment not to exceed seven years. 18 Pa.C.S.A. § 106(b)(4). Section
6114(b) of the PFAA permits a trial court to sentence a defendant to a term
of imprisonment not to exceed 6 months. Thus, indirect criminal contempt
under Section 6114 could be classified as a misdemeanor of the second degree
because the PFAA does not specify the class of offense and the maximum
sentence does not make the offense a felony. 18 Pa.C.S.A. § 106(d).
- 12 - J-S17022-23
Section 106(b)(8), however, states that “[a] crime is a misdemeanor of
the third degree . . . if a person convicted thereof may be sentenced to a term
of imprisonment, the maximum of which is not more than one year.” 18
Pa.C.S.A. § 106(b)(8) (emphasis added). Thus, pursuant to Section
106(b)(8), a conviction for indirect criminal contempt under Section 6114 of
the PFAA could be classified as a misdemeanor of the third degree because
the maximum term of imprisonment cannot exceed 6 months. Because an
ambiguity exists in the classification of a conviction of indirect criminal
contempt under Section 6114 of the PFAA, a defendant is entitled to receive
the benefit of the ambiguity. Commonwealth v. Gamby, 283 A.3d 298, 306
(Pa. 2022) (stating that, “under the rule of lenity, an ambiguous penal statute
must be strictly construed in favor of the defendant”). Thus, a conviction of
indirect criminal contempt under Section 6114 of the PFAA is a misdemeanor
of the third degree.14
Because the crime of indirect criminal contempt under Section 6114 is
a misdemeanor, we find that Appellant, in the case sub judice, is permitted to
petition this Court, pursuant to Section 9781(b), for allowance of appeal. See
42 Pa.C.S.A. § 9781(b); see also Commonwealth v. Taylor, 137 A.3d 611,
618 (Pa. Super. 2016) (permitting, without discussion, an appellant to raise a
challenge to the discretionary aspects of a sentence imposed for indirect ____________________________________________
14 For purposes of the case sub judice, our concern is that a conviction of indirect criminal contempt under Section 6114 is a misdemeanor, regardless of whether it is designated as one of the second or third degree.
- 13 - J-S17022-23
criminal contempt of a PFA order, but finding such a challenge waived for
failure to include a Rule 2119(f) statement and failure to raise the claim at
sentencing or by way of post-sentence motion).
When an appellant petitions this Court pursuant to Section 9781(b) for
allowance of appeal, it is well-settled that “[a]n appellant challenging the
discretionary aspects of his[, or her,] sentence must invoke this Court's
jurisdiction by satisfying a four-part test[.]” Commonwealth v. Moury, 992
A.2d 162, 170 (Pa. Super. 2010).
We conduct a four-part analysis to determine: (1) whether [the] appellant [] filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether [the] appellant's brief has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted). “We evaluate on a case-by-case
basis whether a particular issue constitutes a substantial question about the
appropriateness of sentence.” Commonwealth v. Hill, 210 A.3d 1104, 1116
(Pa. Super. 2019) (citation omitted), appeal denied, 220 A.3d 1066 (Pa.
2019). If an appellant fails to challenge the discretionary aspects of a
sentence either by presenting a claim to the trial court at the time of
sentencing or in a post-sentence motion, then the appellant’s challenge is
waived. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012)
(en banc) (citation omitted), appeal denied, 75 A.3d 1281 (Pa. 2013). A
- 14 - J-S17022-23
substantial question exists when an appellant presents a colorable argument
that the sentence imposed is either (1) inconsistent with a specific provision
of the Sentencing Code or (2) is “contrary to the fundamental norms which
underlie the sentencing process.” Commonwealth v. Mastromarino, 2 A.3d
581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011).
Specifically, the Rule 2119(f) statement “must explain where the sentence
falls in relation to the sentencing guidelines, identify what specific provision of
the [Sentencing] Code [or] what fundamental norm was violated, and explain
how and why the [trial] court violated that particular provision [or
fundamental] norm.”15 Commonwealth v. Feucht, 955 A.2d 377, 384
(Pa. Super. 2008), appeal denied, 963 A.2d 467 (Pa. 2008). In determining
whether a substantial question exists, this Court “cannot look beyond the
statement of questions presented and the prefatory Rule 2119(f)
statement[.]” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super.
2013), aff’d, 125 A.3d 394 (Pa. 2015).
Here, the record demonstrates that Appellant filed timely notices of
appeal and properly preserved a challenge to the discretionary aspects of his
sentences in his post-sentence motion. In his Rule 2119(f) statement, ____________________________________________
15 We are cognizant that the sentencing guidelines do not apply to sentences
imposed for a conviction of indirect criminal contempt pursuant to Section 6114. See 204 Pa. Code § 303.1 (stating, “[t]he sentencing guidelines do not apply to sentences imposed as a result of the following: accelerated rehabilitative disposition; disposition in lieu of trial; direct or indirect contempt of court; violations of [PFA] orders; revocation of probation, except as provided in 204 Pa. Code Chapter 307; or revocation of parole”).
- 15 - J-S17022-23
Appellant asserts that he received “clearly unreasonable” sentences that,
because they were imposed consecutively, were “manifestly excessive” under
the circumstances. Appellant’s Brief at 15. Appellant asserts that Section
9721(b) of the Sentencing Code is applicable to a sentence imposed pursuant
to Section 6114, and the trial court, in fashioning its sentences, failed to
consider his rehabilitative needs and desire to seek treatment, as well as the
“non-violent nature of the offenses.” Id. at 8. Appellant further contends
that “the trial court erred in not making a part of the record[, and] not
disclosing in open court, the reasons for the sentence[s] imposed” as required
by Section 9721(b). Id. at 16.
Because Appellant relies upon Section 9721(b) of the Sentencing Code
in asserting that he raised a substantial question, we must next determine
whether Section 9721(b) of the Sentencing Code is appliable to a sentence
imposed under Section 6114.
Section 9721(b) of the Sentencing Code states, in pertinent part, that
the [trial] court shall follow the general principle that the sentence imposed should call for total confinement that is consistent with [S]ection 9725 (relating to total confinement) and the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. . . . In every case in which the [trial] court imposes a sentence for a felony or misdemeanor, modifies a sentence, resentences a person following revocation of probation[,] or resentences following remand, the [trial] court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
- 16 - J-S17022-23
In determining the applicability of Section 9721(b) to a sentence
imposed for indirect criminal contempt pursuant to Section 6114, we are
guided by this Court’s decision in Wagner, supra, as reaffirmed by Marks,
supra.
In Wagner, the trial court found Wagner in indirect criminal contempt
of a PFA order and sentenced him to a flat sentence of six months’
incarceration.16 Wagner, 564 A.2d at 162. On appeal, Wagner asserted that
the trial court’s sentence imposed a flat term of incarceration without stating
minimum and maximum sentences in violation of Section 9756(b) of the
Sentencing Code.17 Id.; see also 42 Pa.C.S.A. § 9756(b) (effective, Feb. 18,
1983 to Aug. 20, 2000). The Wagner Court held that Wagner’s flat sentence ____________________________________________
16 Section 10190(b) of the then-current version of the PFAA provided that, “notwithstanding any provision of the law to the contrary any sentence for this contempt may include imprisonment up to six months or a fine not to exceed $1000[.00] or both[.]” Wagner, 564 A.2d at 163, citing 35 P.S. § 10190(b). Section 10190(b) was repealed on March 18, 1990, and replaced with Section 6114(b) of the newly-codified PFAA, 23 Pa.C.S.A. §§ 6101-6122 (effective, Mar. 18, 1990) and made part of the Domestic Relations Code. See 23 Pa.C.S.A § 6114(b) (stating, in pertinent part, that, “[a] sentence for contempt under this chapter may include imprisonment up to six months or a fine of not to exceed $1,000[.00], or both, and may include other relief set forth in this chapter”) (effective Mar. 18, 1990 to Dec. 5, 1994).
17 The then-current version of Section 9756(b) of the Sentencing Code stated,
“[t]he [trial] court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.” 42 Pa.C.S.A. § 9756(b) (effective, Feb. 18, 1983 to Aug. 20, 2000). The provision of Section 9756(b) applicable in Wagner, supra, is currently codified in Section 9756(b)(1), which states, “[t]he [trial] court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.” 42 Pa.C.S.A. § 9756(b)(1) (effective Dec. 18, 2019).
- 17 - J-S17022-23
of six months’ incarceration was legal. Wagner, 564 A.2d at 164. It reasoned
that,
While a [PFAA] proceeding is criminal in nature, it does not receive all of the protections that regular criminal proceedings receive. While [indirect] criminal contempt [of a PFA order] is a crime, the sanctions imposed because of it are best left to the discretion of the offended court limited by only a few legislative restrictions. The [PFAA] was enacted as specific remedial legislation and for this [C]ourt to require that contemnors under [the PFAA] receive minimum as well as maximum sentences would only weaken the effectiveness of the [PFAA]. Had the legislature intended that minimum and maximum sentencing requirements be part of the sanctions for indirect criminal contempt under the [PFAA], it would have included such language in the [PFAA].
Id.
In Marks, supra, this Court confronted a challenge to a flat sentence
of 150 days’ incarceration imposed on Marks, pursuant to Section 6114, for
indirect criminal contempt of a PFA order. Marks, 268 A.3d at 458. Marks
argued that his flat sentence was illegal because it did not include minimum
and maximum terms of incarceration as required by Section 9756(b)(1) of the
Sentencing Code. Id. at 459; see also 42 Pa.C.S.A. § 9756(b)(1). The
Marks Court followed Wagner, supra, noting that despite the fact that
Wagner involved Section 10190(b), the Wagner decision, and rationale set
forth therein, was still good law.18 Marks, 268 A.3d at 460-461. In so ____________________________________________
18 Marks argued that Wagner, which was decided under Section 10190(b),
was “no longer control[ling] because of subsequent amendments to the [PFAA, namely the amendment to Section 6114.]” Marks, 268 A.3d at 459. Marks’ argument focused on the fact that Section 10190 included the
- 18 - J-S17022-23
holding, the Marks Court reiterated that if the Legislature intended for Section
9756 of the Sentencing Code, which required a minimum and a maximum
sentence, to apply to the PFAA, and in particular to sentences imposed
pursuant to Section 6114(b) of the PFAA, the Legislature would have expressly
referenced Section 9756 as part of the PFAA. Id. at 461.
Applying the rationale set forth in Wagner, supra, and Marks, supra,
we find that the Legislature intended for Section 9721(b) of the Sentencing
Code to apply to sentences imposed pursuant to Section 6114 of the PFAA.
Although Section 9721(b) does not specifically reference the PFAA or, in
particular, sentences imposed pursuant to Section 6114(b), Section 9721(b)
does state that “[i]n every case in which the court imposes a sentence for
a felony or misdemeanor . . . the court shall make as a part of the record,
and disclose in open court at the time of sentencing, a statement of the reason
or reasons for the sentence imposed.” 42 Pa.C.S.A. § 9721(b) (emphasis
added). As discussed supra, an indirect criminal contempt conviction is a
misdemeanor and because sentences imposed for misdemeanors are included
within the confines of Section 9721(b), Section 9721(b) applies to sentences
imposed under Section 6114(b) for indirect criminal contempt of a PFA order.
See In Interest of E.O., 195 A.3d 583, 586 (Pa. Super. 2018) (stating,
“[c]riminal contempt is a crime punishable by imprisonment or fine; sentences
preamble – “Notwithstanding any provision of the law to the contrary,” while Section 6114 did not include this preamble.
- 19 - J-S17022-23
of imprisonment for contempt must be imposed according to the Sentencing
Code”); see also Hannigan v. Semelsberger, 272 A.3d 492, 2022 WL
185185, at *4 (Pa. Super. filed Jan. 20, 2022) (unpublished memorandum)
(noting that, the trial court must consider the Section 9721(b) factors when
imposing a sentence for indirect criminal contempt of a PFA order).
Here, Appellant claims the trial court failed to consider mitigating factors
and failed to state its reasons for Appellant’s sentences on the record at the
sentencing hearing as required by Section 9721(b). Because Section 9721(b)
applies to Appellant’s sentences in the case sub judice, we find that Appellant
raises a substantial question.19 See Commonwealth v. Goodco
Mechanical, Inc., 291 A.3d 378 (Pa. Super. 2023) (stating that, “A claim
that the trial court failed to state adequate reasons for the sentence on the
record raises a substantial question. Likewise, a claim of excessiveness, in
conjunction with a claim that the [trial] court did not consider the relevant
sentencing criteria [] poses a substantial question.”); see also
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (stating, a claim that “the imposition of consecutive sentences [was]
unduly excessive, together with [a] claim that the [trial] court failed to
consider rehabilitative needs upon fashioning its sentence, presents a
substantial question”), appeal denied, 126 A.3d 1282 (Pa. 2015);
19 We note that the Commonwealth concedes that Appellant raised a substantial question. Commonwealth’s Brief at 16, 18.
- 20 - J-S17022-23
Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (stating,
a trial court’s failure “to offer specific reasons for a sentence [raises] a
substantial question” (original brackets omitted)). Therefore, we proceed to
consider the merits of Appellant’s discretionary sentencing claims.
Appellant argues that his overall sentence was manifestly unreasonable
because of the consecutive nature of the sentences and because the trial court
failed to adhere to the requirements of Section 9721(b) in fashioning its
sentences. Appellant’s Brief at 22. Appellant asserts that the trial court made
“absolutely no mention of [Appellant’s] rehabilitative needs, or the needs of
his family, who did not want [Appellant] to be incarcerated.” Id. Moreover,
Appellant contends the trial court failed to discuss his work history or his desire
for rehabilitative treatment, and did not rely on a pre-sentence investigation
report in fashioning the sentences. Id. Appellant avers that “the trial court
did not give consideration for [Appellant’s] rehabilitative needs, and the
sentence is clearly unreasonable due to the [trial] court’s failure to consider
these mitigating factors.” Id. Appellant further contends that pursuant to
Section 9721(b), the trial court is required to place its reasons for the sentence
on the record and that in Appellant’s case, the trial court “really didn’t give a
reason for the sentence[s] imposed[.]” Id. at 20.
Section 6114(b) of the PFAA states, in pertinent part, that, “[a] sentence
for [indirect criminal] contempt under this chapter may include[] a fine of not
less than $300[.00] nor more than $1,000[.00] and imprisonment up to six
months[, or] a fine of not less than $300[.00] nor more than $1,000[.00] and
- 21 - J-S17022-23
supervised probation not to exceed six months[.]” 23 Pa.C.S.A.
§ 6114(b)(1)(i)(A) and (B). Thus, pursuant to Section 6114(b), a trial court
may order an individual, having been convicted of indirect criminal contempt
for violating a PFA order, to pay a fine ranging from $300.00 to $1,000.00,
and impose a sentence of incarceration or probation, not to exceed six
months.20 Id. Moreover, a trial court has the power to impose consecutive ____________________________________________
20 We are cognizant that in McMullen, supra, our Supreme declared Section
4136(b) of the Judicial Code unconstitutional because it restricted a court’s inherent authority to punish for indirect criminal contempt by statutorily imposing a maximum fine and a maximum term of incarceration. McMullen, 961 A.2d at 849; see also 42 Pa.C.S.A. § 4136(b) (stating, “Except as otherwise provided in this title or by statute hereafter enacted, punishment for [indirect criminal contempt] may be by fine not exceeding $100[.00 or by imprisonment not exceeding 15 days in the jail of the county where the court is sitting, or both, in the discretion of the court.”). The McMullen Court explained that the Legislature “cannot create a form of indirect criminal contempt and restrict a court’s ability to punish individuals who commit contempt of court.” McMullen, 961 A.2d at 850 (stating that, [w]hile the [L]egislature generally may determine the appropriate punishment for criminal conduct, indirect criminal contempt is an offense against the court’s inherent authority, not necessarily against the public”). The McMullen Court specifically limited its holding, however, to Section 4136(b). Id. at 850 n.6 (stating, “We recognize there is other statutory law concerning contempt in Title 42, see 42 Pa.C.S.[A.] §§ 4132-[41]39; however, only [Section] 4136 is at issue in this case.”)
Recently, this Court in Commonwealth v. Leomporra, 242 A.2d 442, 2020 WL 6821633 (Pa. Super. filed Nov. 20, 2020) (unpublished memorandum) held that Section 4133 of the Judicial Code was unconstitutional because it “improperly infringes on a court’s inherent authority to punish individuals who commit indirect criminal contempt of court.” Leomporra, 242 A.2d 442, 2020 WL 6821633, at *8 (stating, “[l]ike Section 4136(b), Section 4133 is a legislative creation that purports to limit a court’s inherent authority to impose punishment for indirect criminal contempt”); see also 42 Pa.C.S.A. § 4133 (stating, “Except as otherwise provided by statute, the punishment of
- 22 - J-S17022-23
maximum contempt sentences under Section 6114 where a trial court finds
an individual in indirect criminal contempt for multiple violations of a single
PFA order in order to effectuate the goal of the PFA, which is to deter abuse,
and to address the needs of the protected victims. Hill v. Randolph, 24 A.3d
866, 871 (Pa. Super. 2011); see also Commonwealth v. Austin, 66 A.3d
798, 808 (Pa. Super. 2013) (stating, “Pennsylvania law affords the sentencing
court discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time”), appeal denied, 77 A.3d 1258
(Pa. 2013); 42 Pa.C.S.A. § 9721(a) (stating, “[i]n determining the sentence
to be imposed the [trial] court . . . may impose [the sentences] consecutively
or concurrently”).
Here, Appellant was found to be in indirect criminal contempt of the
November 2020 final PFA order on six separate and distinct instances. As
such, the trial court sentenced Appellant pursuant to Section 6114(b) to 3 to
6 months’ incarceration on four of the six indirect criminal contempt
commitment for contempt provided in section 4132 (relating to attachment and summary punishment for contempts) shall extend only to contempts committed in open court. All other contempts shall be punished by fine only.” (emphasis added)).
Unlike Leomporra, where “the Commonwealth expressly call[ed] into question the constitutionality of Section 4133 in light of McMullen” (see Leomporra, 242 A.3d 442, 2020 WL 6821633, at *8 n.9), neither party in the case sub judice called into question the constitutionality of Section 6114(b) of the PFAA. Since the constitutionality of Section 6114(b) is not before us today, unless and until our Supreme Court or this Court holds otherwise, Section 6114(b) remains valid.
- 23 - J-S17022-23
convictions with each term of incarceration set to run consecutively. The trial
court sentenced Appellant to 6 months’ probation on the two remaining
indirect criminal contempt convictions with the terms of probation set to run
consecutively to each other and consecutively to the aggregate term of
incarceration. Therefore, Appellant’s aggregate sentence was 1 to 2 years’
incarceration to be followed by 1 year of probation. In sentencing Appellant,
the trial court stated,
I'm going to sentence you to a period of incarceration of not less than three nor more than six months and those sentences of incarceration will run consecutively. At the last two violations, we're going to place you on a period of probation of six months, they will run consecutive[ly] to each other and consecutive[ly] with the periods of incarceration. And the periods of probation will require that you comply with the [Justice Related Services] plan and you are to be released to Justice Related Services only.
N.T., 11/19/21, at 29.
The record demonstrates that the trial court heard testimony from
Appellant regarding his need for, and attempts to receive, mental health
treatment.21 N.T, 11/19/21, at 21-25. Thus, the trial court was aware of ____________________________________________
21 Appellant testified regarding his 15-year struggle with cocaine addiction and
his realization that he needed mental health treatment only to find that his attempts to obtain such treatment placed him on a six to twelve month waiting list. N.T., 11/19/21, at 21. Appellant further testified that he attempted to receive mental health treatment from five different hospitals, that he attempted suicide three to four times, and was, himself, a victim of prior physical and sexual abuse. Id. at 21, 28.
We recognize that Appellant’s testimony regarding his mental health struggles was offered as part of the proceeding to determine whether Appellant was in
- 24 - J-S17022-23
Appellant’s mental health needs. The trial court also heard from the victim,
who detailed the circumstances that led to Appellant’s convictions and the
impact Appellant’s behavior had on the victim and their children. Id. at 3-17.
Moreover, in imposing its sentence, the trial court ordered Appellant to comply
with the Justice Related Services plan while incarcerated and, upon serving
his term of incarceration, be released to Justice Related Services.22 In so
ordering, the trial court recognized Appellant’s need for mental health
treatment and rehabilitation in fashioning its sentences. In viewing the record
as a whole, we find the trial court considered the facts of the crime and
Appellant’s character, pursuant to Section 9721(b). While Appellant, in the
case sub judice, may have desired more, the trial court fulfilled its obligations
under Section 9721(b). See Commonwealth v. Crump, 995 A.2d 1280,
1283 (Pa. Super. 2010) (stating, a trial court “need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically reference the
statute in question, but the record as a whole must reflect the sentencing
court's consideration of the facts of the crime and character of the offender”).
indirect criminal contempt of the PFA order and was not repeated as part of the sentencing hearing, which immediately followed Appellant’s convictions of indirect criminal contempt.
22 Justice Related Services is a program designed to provide services and assistance to individuals with, inter alia, mental health issues who are involved in the criminal justice system. See www.https://allegheny.pa.networkofcare.org/mh/services/agency.aspx?pid= humanservicesadministrativeorganizationjusticerelatedservices_2_758_0 (last visited Aug. 14, 2023).
- 25 - J-S17022-23
Judgments of sentence affirmed. Case remanded for correction of
clerical error at CP-4352. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/12/2023
- 26 -