Com. v. Beech, D.

• Court: Superior Court of Pennsylvania
• Decided: June 18, 2020
• Docket: 1869 MDA 2019
• Status: Unpublished

Opinion

J-A11015-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID MICHAEL BEECH : : Appellant : No. 1869 MDA 2019

Appeal from the Judgment of Sentence Entered October 22, 2019 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-MD-0000534-2019

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED JUNE 18, 2020

Appellant, David Beech, appeals from his judgment of sentence entered

by the Court of Common Pleas of Cumberland County for indirect criminal

contempt as a result of his contact with the protected party of a protection

from abuse (“PFA”) order. We affirm.

On October 1, 2019, Officer Jarreau Dodson of the Middlesex Township

Police Department attended Appellant’s hearing regarding a separate charge

of indirect criminal contempt for having contact with the same protected party,

Sara Joy, in violation of the same PFA order involved in the instant case.

Following that hearing, Joy asked Officer Dodson to walk her to her car. While

Officer Dodson and Joy were waiting to cross the street at a traffic light outside

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* Former Justice specially assigned to the Superior Court. J-A11015-20

of the courthouse, Appellant ran across the street to where the officer and Joy

were standing. Appellant immediately began asking Officer Dodson questions,

which Officer Dodson initially attempted to ignore.

Appellant, however, continued to ask Officer Dodson questions. Officer

Dodson explained to Appellant that he could not answer Appellant’s questions

because he was with Joy and reminded Appellant that he had just been found

guilty of violating the PFA order. In response, Appellant looked over the

officer’s shoulder at Joy and stated, “I don’t care.” N.T. Hearing In Re: Indirect

Criminal Contempt/Sentence, 10/22/19, at 4, 8. Appellant persisted with his

questions, and Officer Dodson repeatedly told him that he was not going to

answer those questions. Appellant then told Officer Dodson to “suck [his]

d***” and left. Id. at 5.

Based on this incident, Appellant was once again charged with indirect

criminal contempt for violating the PFA order. Following a hearing on October

22, 2019, the trial court found Appellant guilty as charged and sentenced him

to two to six months of incarceration. Appellant filed this timely notice of

appeal, arguing that the evidence was insufficient to sustain his conviction for

indirect criminal contempt.

“Evidence presented at trial is sufficient when, viewed in the light most

favorable to the Commonwealth as verdict winner, the evidence and all

reasonable inferences derived therefrom are sufficient to establish all

elements of the offense beyond a reasonable doubt.” Commonwealth v.

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Blakeney, 946 A.2d 645, 651 (Pa. 2008) (citation omitted). To establish

indirect criminal contempt for the violation of a PFA order, the Commonwealth

must prove: 1) the PFA order was sufficiently definite, clear and specific to the

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

had notice of the order; 3) the act constituting the violation was volitional;

and 4) the contemnor acted with wrongful intent. See Commonwealth v.

Lambert, 147 A.3d 1221, 1226 (Pa. Super. 2016).

When reviewing a contempt conviction, much reliance is given to the discretion of the trial judge. Accordingly, [the appellate court is] confined to a determination of whether the facts support the trial court[’]s decision. We will reverse a trial court’s determination only when there has been a plain abuse of discretion.

Id. (citations omitted).

Here, Appellant first argues that the Commonwealth failed to establish

that he acted with wrongful intent because it did not show that he had any

actual contact with Joy. He maintains that while Joy may have been in the

company of Officer Dodson, he only engaged in conversation with Officer

Dodson and therefore there was no contact with Joy that would justify a finding

of contempt. This claim fails.

The PFA Act, 23 Pa. C.S.A. § 6101 et seq., does not provide a definition

of “contact.” However, in rejecting Appellant’s argument below, the trial court

stated:

One of Webster [Ninth New Collegiate Dictionary (Principal Copyright 1983)]’s several definitions of the noun [“contact”] includes an ‘establishing of communication with someone or receiving a significant signal from a person or object.’ We agree

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that the two parties to a PFA may find themselves in the vicinity of each other and not have ‘contact’ within this definition. In this case, however, [Appellant] approached a police officer who was standing next to [Joy]. It was his purpose to discuss the PFA proceeding with the police officer with the obvious intent, if not the sole purpose, that [Joy] would overhear it. This, to our mind, is ‘contact’ with [Joy].

Trial Court Opinion, 1/16/20, at 4 (unpaginated).

We see no abuse of discretion in the trial court’s conclusion, especially

considering the testimony that Appellant also directly engaged with Joy by

looking at her when he made the statement “I don’t care.” N.T. Hearing In

Re: Indirect Criminal Contempt/Sentence, 10/22/19, at 4, 8. In attempting to

establish that the trial court did abuse its discretion, Appellant relies on

Commonwealth v. Baker, 766 A.2d 328 (Pa. 2001) and Commonwealth

v. Haigh, 874 A.2d 1174 (Pa. Super. 2005). Neither of these cases, however,

support Appellant’s claim.

In Baker , two deputy sheriffs overheard the appellant say that he was

“going to kill this bitch” after they served Appellant with a PFA order at the

prison where he was an inmate. See Baker, 766 A.2d at 330. The appellant

was subsequently convicted of indirect criminal contempt in connection with

this statement. On appeal, however, our Supreme Court determined that there

was insufficient evidence to sustain the conviction because the protected party

was not anywhere near the appellant when he made the statement. See id.

at 331-332. Clearly, the same is not true in this case as Joy was within feet of

Appellant during the entire exchange outside of the courthouse.

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The circumstances in Haigh were also materially different from those in

the instant case. In Haigh, the appellant’s estranged wife obtained a PFA

order against the appellant. After the wife had a procedure removing a mass

from her breast, the appellant tried to contact her about the procedure by

letter and by phone and was charged with indirect criminal contempt for doing

so. During a hearing on that indirect criminal contempt charge, the appellant

leaned over to the wife and asked if she was “ok on top?” Haigh, 874 A.2d at

1176. The court charged Appellant with an additional count of indirect criminal

contempt, for which Appellant was convicted. Citing the “peculiar

circumstances of the case,” this Court held on appeal that the evidence was

insufficient to support that conviction as the appellant had not acted with

wrongful intent in asking his estranged wife about her health. Id. at 1178. In

reaching this conclusion, this Court stated:

It is imperative that trial judges use common sense and consider the context and surrounding factors in making their determinations of whether a violation of a court order is truly intentional before imposing sanctions of criminal contempt.

Id. at 1177.

Here, common sense and the consideration of surrounding factors

clearly support the trial court’s conclusion that Appellant’s contact with Officer

Dodson and Joy violated the PFA order. As the Commonwealth states in its

brief:

The facts of the instant case require no more than a common sense determination. [Appellant] acted with wrongful intent, when, immediately following a hearing on a similar matter

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[involving a violation of the very PFA order at issue here], [Appellant] publicly approached [Joy] and acted in a vulgar and intimidating manner, knowing she would be aware of his behavior. When viewing all evidence in a light most favorable to [the] Commonwealth as verdict winner, this Honorable Court must find the evidence was sufficient to support a finding of guilt.

Commonwealth’s Brief at 13. We agree.

Appellant also makes a passing assertion, however, that because the

Commonwealth did not admit the underlying PFA order into evidence it “failed

to prove beyond a reasonable doubt that the underlying PFA order plainly

precluded the conduct exhibited by Appellant and that Appellant had sufficient

notice that his conduct would constitute a violation of that order.” Appellant’s

Brief at 11. This claim also fails.

In the first place, it is questionable whether Appellant properly

preserved this claim. In his 1925(a) statement of errors complained of on

appeal, Appellant only challenged the sufficiency of the evidence on the basis

of his claim above that the Commonwealth failed to prove he “had any contact

with the [PFA] order’s protected party, as opposed to the arresting officer.”

Statement of Concise Errors Complained of on Appeal, 12/9/19. The statement

did not contain any allegation regarding insufficient notice of what conduct

was prohibited. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)

(holding that issues that are not included in the appellant’s 1925(a) statement

of errors complained of on appeal are waived).

In any event, even if not waived, the issue lacks merit. While we agree

with Appellant that the underlying PFA order does not appear to be in the

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record, we disagree with his assertion that the trial court did not have

sufficient evidence to conclude that Appellant understood what conduct the

PFA order prohibited. Given that the incident at hand occurred immediately

after a hearing in which Appellant was found guilty of a separate violation of

the exact same PFA order at issue in this appeal, he was clearly aware of the

PFA order and its contents. See also Commonwealth v. Walsh, 36 A.3d

613, 619 (Pa. Super. 2012) (stating that a party to a PFA order is presumed

to have read the contents of that order).

Moreover, Appellant does not deny that the PFA order prohibited him

from having contact with Joy. The trial court, as explained above, found that

Appellant’s actions constituted contact with Joy and it also concluded that

Appellant “knew or should have known that it was.” Trial Court Opinion,

1/16/20, at 3 (unpaginated). Appellant has simply not shown that the trial

court abused its discretion in reaching either of these conclusions. No relief is

due.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/18/2020

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