Com. v. Glass, W.

• Court: Superior Court of Pennsylvania
• Decided: August 20, 2014
• Docket: 216 MDA 2014
• Status: Unpublished

Opinion

J-S48036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WAYNE MICHAEL GLASS,

Appellant No. 216 MDA 2014

Appeal from the Judgment of Sentence January 8, 2014 in the Court of Common Pleas of Adams County Criminal Division at No.: CP-01-MD-0001896-2013

BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED AUGUST 20, 2014

Appellant, Wayne Michael Glass, appeals from the judgment of

sentence imposed after his non-jury conviction of indirect criminal contempt

involving violations of a protection from abuse (PFA) ord

counsel seeks to withdraw from representation pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant

The

as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S48036-14

[o]rder which modified the conditions of a previously entered PFA [o]rder[a] to include a no-contact provision and to extend the terms through April 20, 2017. The April 15, 2013 [o]rder was entered after Appellant acknowledged violations of a PFA [o]rder entered on May 23, 2012. Appellant has received copies of the initial and modified PFA [o]rders entered against him and was present before the [trial c]ourt on April 15, 2013. Following a hearing on January 8, 2014, [the c]ourt determined that Appellant violated the provisions of the PFA [o]rders entered against him by contacting the PFA plaintiff, [the victim], and engaging in conduct which was harassing to her. [a] The original PFA became effective on April 20, 2012 and was subsequently modified and extended by both a May 23, 2012 and April 15, 2013 PFA [o]rder.

that Appellant had sent a total of eight letters to various parties, -in- law, and the Postmaster at the New Oxford Branch of the United States Postal Service,[b] which contained both explicit references to [the victim] and messages directed to her. These letters were given to [the victim] by the parties to whom they were addressed. The postmarks on the envelopes indicate that the letters were sent between July 9, 2013 and October 21, 2013.

and Corporal Christopher Mumma of the Pennsylvania State Police, who read the letters provided by [the victim], testified to the contents of the letters. [b] [The victim] works as a postal carrier for the U.S.P.S. in New Oxford, Pennsylvania.

The series of letters contained language which both indirectly and directly referenced [the victim]. The letter sent by

supervisor at the postal service, but nevertheless directly related to [the victim]. In that letter, Appellant stated that he believed [the victim] was deceiving and manipulating the mail. In August

which contained many statements about [the victim], including

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w]ake up she is on my mind and you guys too[,] I need you in

love -11). The letter Id. at 11).

A [twelve]-page section of the August 2013 letter began Id.). In that past relationship and references songs that the two used to listen to together. (Id.). The [twelve]-page section also contains a description of roses that Appellant had sent to [the victim] and the meaning of each. (Id.). Appellant wrote

also wrote about the effects of addiction, discusses divorce, and expresses his desire for a happy marriage. (See id.). A sentence at the bottom are no longer two but one, let no man or anything split apart what God has joined together. Only God loves you more than Id. at 18).

A subsequent letter, received the week of September 16, 2013 described as depicting a cross with a heart in the middle with a hand holding the heart and two rings intertwined at the top of the cross. (Id. at 14). A house had been drawn inside the picture of the heart and in that house there is a picture of a Id. at 14-15). The picture is signed Id. at 16). Later in the

] my wife and sons I have them after [twenty-six] Id. at 15). The next sentence states: Id.). On the

especially mom in bed with me, smelling her, touching her, having her hair in my face, rubbing her leg up and down my leg Id.). The letter concludes with

(Id.).

A letter dated October 18[,] 2013 directs a family member

instructs the individual not to tell [the victim] that they are from

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(Id. at 16). Each of the eight letters references [the victim]. Corporal Mumma testified that, in his experience with [Appellant] and [the victim], the letters which Appellant sends to his children are given to [the victim]. (See id.). He also t with [the victim]. (Id. at 18-19).

(Trial Court Opinion, 3/25/14, at 1-4) (citation formatting provided). At the

conclusion of the hearing, the trial court found Appellant guilty of indirect

criminal contempt for violating the no-contact terms of the April 15, 2013

PFA order, and sentenced him to not less than three nor more than six

serving, plus a fine and costs. Th -sentence

motion on January 22, 2014. Appellant timely appealed and, on May 16,

2014, counsel filed an application to withdraw and an Anders brief on the

basis that the appeal is frivolous.1

The standard of review for an Anders brief is well-settled.

Court-appointed counsel who seek to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous must:

(1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) file a brief referring to anything that arguably might support the - ____________________________________________

1 Appellant filed a timely Rule 1925(b) statement on February 25, 2014

March 25, 2014. See Pa.R.A.P. 1925.

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letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems

[T]his Court may not review the merits of the underlying issues without first passing on the request to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations

and most quotation marks omitted). Further, our Supreme Court ruled in

Santiago, supra, that Anders of

Santiago, supra at 360.

Anders brief and application to withdraw comply

conscientious examination of the record [and] determined that the appeal

Lilley, supra at 997; (see also Petition for Leave to

Withdraw as Counsel, 5/16/14, at 1). Additionally, the record establishes

that counsel served Appellant with a copy of the Anders brief and

application to withdraw, and a letter of notice which advised Appellant of his

right to retain new counsel or to proceed pro se and raise additional issues

to this Court. See Lilley, supra at 997; (see also Petition for Leave to

Withdraw as Counsel, 5/16/14, Appendix C, at 1). Further, the application

to anything that arguably might support the appeal[

Lilley, supra at 997; (see also Anders Brief, at 11-15). As noted by our

Supreme Court in Santiago, the fac

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arguably support the frivolity of the appeal does not violate the

requirements of Anders. See Santiago, supra at 360-61.

with the technical Anders requirements,

Lilley, supra at 998

(citation omitted).

The Anders brief raises three questions for our review:

1. Did the Commonwealth fail to present sufficient evidence of indirect criminal contempt?

2.

3. Did the sentencing court abuse its discretion in sentencing Appellant to [three to six] months, the maximum allowed by law?

(Anders Brief, at 8).

standard of review for sufficiency challenges is well-settled:

In reviewing sufficiency of evidence claims, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all the elements of the offense. Additionally, to sustain a conviction, the facts and circumstances which the Commonwealth must prove, must be such that every essential element of the crime is established beyond a reasonable doubt. Admittedly, guilt must be based on facts and conditions proved, and not on suspicion or surmise. Entirely circumstantial evidence is sufficient so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Any

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s guilt may be resolved by the fact-finder 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. The fact finder is free to believe all, part, or none of the evidence presented at trial.

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011), appeal

denied, 44 A.3d 1161 (Pa. 2012) (citations omitted).

Further:

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 violation of the protective order. As with those accused of any crime, one charged with indirect criminal contempt is to be provided the safeguards which statute and criminal procedures afford. To establish indirect criminal contempt, 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.

Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007)

(citations and quotation marks omitted).

Here, the April 15, 2013 PFA order2 contained a no-contact provision

ng any contact of any type with [the

2 The PFA order is dated April 15, 2013, and was filed in the civil division of the trial court on April 17, 2013. After this Court requested a copy of that order, it was filed in the criminal court and made a part of the certified record in this matter on July 22, 2014. The contempt order that is the subject of this appeal (Footnote Continued Next Page)

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(Order, 4/15/13, at 1). Appellant challenges the sufficiency of the

the fourth element necessary for indirect criminal contempt. See

Brumbaugh, supra at 110; (Anders Brief, at 8, 12-13). Specifically,

act contrary to the . . . PFA

Anders Brief,

at 13). We disagree.

As aptly stated by the trial court:

. . . [T]here is sufficient evidence to show that Appellant acted with wrongful intent by writing and sending letters which contained references to and messages for [the victim]. The PFA [o]rder against Appellant specifically directed him not to have any contact of any type with [the victim] and to refrain from harassing her. . . . Several of the letters . . . contain messages that appear to be directly intended for [the victim] to read, though the envelopes and headings of the letter are not addressed to her. In one letter, Appellant directs his sons to

with wrongful intent when he sent messages to and about [the victim] in violation of the PFA order, especially in light of [the affirmation that she does not wish to be contacted by Appellant in any way, a fact that Appellant appears unwilling to accept.

(Trial Ct. Op., at 7-8) (emphasis added and citation formatting provided).

We agree with the trial court.

_______________________ (Footnote Continued)

is the date that we also will use.

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The April 15, 2013 PFA order modified a previously entered order to

any contact of any

(Order, 4/15/13, at 1 (emphases added)). From July 9, 2013 through

October 21, 2013, Appellant sent approximately eight letters containing

messages for and about the victim. (See N.T. Hearing, 1/08/14, at 6-7).

Although Appellant addressed the subject letters to third parties, they all

gave them to her to open. (See id. at 5, 7, 18-19). In the letters

Id. at 9). In the August, 2013

letter, Appellant wrote:

I think about [the victim] all the time, all day before bed. Wake up she is on my mind and you guys too. I need you in my life. . . . I love mom. . . . I love your mother more than anyone will know. . . . I want my wife back. . . . The love of my life. . . . You know what to do I hope. . . . [H]appy 24th anniversary, [Victim].

(Id. at 9-11). In that approximately twelve-page letter, Appellant writes

about songs he and the victim used to listen to, the roses he sent to the

Id. at 11).

Corporal Mumm

violations of the PFA order between the parties. (See id. at 13). He

described the September 16, 2013 letter as containing artwork of a cross

Id.

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at 15; see id. at 14-15). He also read portions of the September 16, 2013

letter into evidence, in which Appellant stated:

sons I have them after 26 years of being together. . . . They are out of their fucking minds for real. . . . I miss you all the most, especially mom in bed with me, smelling her, touching her, having her hair in my face, rubbing her leg up and down my leg before she goes to sleep. . . . Tell mom I love her always and

(Id. at 15).

Finally, in the October 18, 2013 letter, Appellant directed its recipient

Id. at 16).

Based on the foregoing, we conclude that the trial court did not abuse

its discretion when it found that the Commonwealth met its burden of

third parties, which is a violation of t

see also Moreno, supra at

136; Brumbaugh, supra at 110; (see also Order, 4/15/13, at 1).

Lilley, supra at 998.

[f]inding of [c]ontempt [w]as [c]ontrary [t]o [t]he [w]eight [o]f [t]he

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Anders Brief, at 13).3 Specifically, Appellant argues that,

with the victim until he was older], the [trial] court, as factfinder, rendered a

verdict which was so contrary to the evidence as to shock

Id. at 14; see id. at 13). We disagree.

Our standard of review of a challenge to the weight of the evidence is

well-settled:

[T]he weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact.

contrary to the evidence as to

Moreno, supra at 135 (citation omitted). To succeed on a challenge to the

the evidence must be so tenuous, vague and

Commonwealth v. Shaffer, 722 A.2d 195, 200 (Pa. Super. 1998), appeal

denied, 739 A.2d 165 (Pa. 1999) (citation omitted).

Here, the trial court based its verdict on the credibility of the victim

3 Appellant failed to raise a weight of the evidence claim in his post-sentence motion. Generally, this would result in waiver. See Pa.R.Crim.P. 607(A); Commonwealth v. Barnhart, 933 A.2d 1061, 1066 (Pa. Super. 2007). However, because we are required to own review of the trial

Lilley, supra at 998 (citation omitted), we will review this issue on its merits.

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t

the evidence [was

not] so tenuous, vague and uncertain that the verdict shocks the conscience

of the [C]ourt Shaffer, supra

Moreno, supra at

135. (See Anders Brief, at 13-14). The trial court properly exercised its

discretion and its verdict does not shock the conscience. Accordingly, we

Lilley, supra at

998.

In his third issue, Appellant challenges the discretionary aspects of his

sentence. (See id. at 11, 14-15). This issue does not merit relief.

It is well-settled that:

[w]hen challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. Two requirements must be met before we will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. We

whether a substantial question exists. Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.

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Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(citations, quotation marks, and footnote omitted).4

Here,

ot less than three nor more than six

Anders Brief, at 11). We conclude that this does not raise a

violate[d] either a specific provision of the sentencing scheme set forth in

the Sentencing Code or a particular fundamental norm underlying the

Ahmad, supra at 886 (citation omitted).

consider mitigating factors. (See Anders Brief, at 15 (arguing that the trial

However, an argument that the court failed to consider mitigating factors

does not raise a substantial question, either. See Commonwealth v.

Moury

4 Appellant arguably raised this issue in his post-sentence motion. (See Post-Sentence Motion for Reconsideration, 1/17/14, at unnumbered page 2); see also Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011) (noting that to preserve claims relating to discretionary aspects of sentence properly, appellant must first raise them with trial court). Therefore, we give Appellant the benefit of the doubt and review his claim.

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weigh the proposed mitigating factors as Appellant wished, absent more,

independent review of the record reveals that the court did not abuse its

discretion in sentencing Appellant.

Our standard of review of a sentencing challenge 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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal

denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

A sentence for indirect criminal contempt resulting from a violation of

a PFA

6114(b)(1)(i)(A).

Here, the court sentenced Appellant to not less than three nor more

the legal range.

Also, our review of the sentencing transcript reveals that the trial court

the court stated:

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been repetitive. [Appellant] has been told repeatedly that letters of this sort are a violation of the PFA [o]rder in that whether they are direct communication to [the victim] or third party communication, he has been aware that his children are not holding these letters and are regularly providing them to her.

In addition, the PFA [o]rder prescribes conduct that would constitute harassment. Certainly this falls into that context as well. So the violation here is not necessarily just communication with the protected party, but also course of conduct that is in my view harassing toward that person and while there are no direct

repeatedly such that this is the fourth contempt violation, they are very threatening, very intimidating, and [the c]ourt takes it quite seriously.

(N.T. Hearing, 1/08/13, at 21).

Therefore, based on the foregoing, we conclude that the trial court did

not abuse its discretion in imposin

failed to offer any persuasive argument to support his request that we

disturb it. See Glass, supra at 727. Accordingly, based on our own

is

Additionally, we find no other non-frivolous issues.

granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2014

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