Com. v. Hesser, W.

• Court: Superior Court of Pennsylvania
• Decided: November 8, 2017
• Docket: 435 MDA 2017
• Status: Unpublished

Opinion

J-S68007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WAYNE HESSER : : Appellant : No. 435 MDA 2017

Appeal from the Judgment of Sentence February 7, 2017 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 12917-2016

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 08, 2017

Wayne Hesser appeals from the trial court’s judgment of sentence,

entered in the Court of Common Pleas of Luzerne County, after he was found

guilty of indirect criminal contempt1 (“ICC”) for violating a Protection from

Abuse (“PFA”) order and sentenced to three months’ probation. Counsel has

also filed an Anders2 brief on appeal, seeking to withdraw from

representation. After careful review, we affirm and grant counsel’s request to

withdraw.

____________________________________________

1 See 23 Pa.C.S. § 6114(a) (“Where the police, sheriff or the plaintiff have filed charges of indirect criminal contempt against a defendant for violation of a protection order issued under this chapter . . . or a court-approved consent agreement, the court may hold the defendant in indirect criminal contempt and punish the defendant in accordance with law.”).

2 Anders v. California, 386 U.S. 738 (1967).

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S68007-17

On January 10, 2017, a Luzerne County trial judge issued a final PFA

order against Hesser, the complainant’s ex-boyfriend, effective January 12,

2017. The PFA states, in relevant part:

[Hesser] shall not abuse, harass, stalk or threaten or attempt to use physical force that would reasonably be expected to cause bodily injury to [complainant or the parties’ child] in any place where they might be found.

* * *

[] Except as provided in paragraph 5 of this order, [Hesser] is prohibited from having ANY CONTACT with [complainant], either directly or indirectly, or [the parties’ child] protected under this order, at any location, including but not limited to any contact at [the complainant’s] school, business, or place of employment. [Hesser] is specifically ordered to stay away from the following locations for the duration of this order. Limited contact regarding visitation/custody is permitted (text only).

Final PFA Order, 1/12/17, at 1-2 (emphasis added).

On January 19, 2017, Hesser was charged and arrested on two counts

of indirect criminal contempt after allegedly violating the PFA order. After a

hearing held on January 26, 2017, the trial court found Hesser guilty of one

count of indirect criminal contempt related to an alleged text message sent in

violation of the PFA order. Hesser was sentenced to three months’ probation

and ordered to comply with various conditions, including obtaining a mental

health evaluation, an anger management assessment, and a batterer’s

intervention. On February 6, 2017, Hesser filed a motion for reconsideration.

On February 7, 2017, the trial court denied the motion. Hesser filed a timely

notice of appeal; counsel filed a Pa.R.A.P. 1925(c)(4) Statement of Intent to

file an Anders brief. On appeal, Hesser raises one issue for our consideration:

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Whether the trial court abused its discretion in finding [] Hesser guilty of

indirect criminal contempt where the Commonwealth failed to prove beyond a

reasonable doubt that [] Hesser intentionally violated the PFA.

In order for counsel to withdraw from an appeal pursuant to Anders,

certain requirements must be met. Counsel must:

(1) provide a summary of the procedural history and facts, with citations to the record;

(2) refer to anything in the record that counsel believes arguably supports the appeal;

(3) set forth counsel's conclusion that the appeal is frivolous; and

(4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Our Court

must then conduct its own review of the proceedings and make an

independent judgment to decide whether the appeal is, in fact, wholly

frivolous. Id. at 359 (citation omitted).

Counsel has complied with the dictates of Anders and Santiago, having

made a conscientious examination of the record, controlling case law and

applicable statutes. Counsel has also identified for our Court the issues and

supporting testimony that may arguably be raised on appeal. Furthermore,

counsel has notified Hesser of his request to withdraw, furnished him with a

copy of the Anders brief, and advised him that he may retain new counsel,

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proceed pro se or raise any additional points that he deems worthy of our

consideration.3

With regard to our independent review of the issue on appeal, we note

that the standard of review of a contempt order is whether the trial court

abused its discretion. Commonwealth v. Baker, 766 A.2d 328, 331 (Pa.

2001) (citation omitted). An appellate court cannot find an abuse of discretion

merely for an error of judgment unless, in reaching a conclusion, the trial court

overrides or misapplies the law, or its judgment is manifestly unreasonable,

or the evidence of record shows that the court’s judgment exercised is

manifestly unreasonable or lacking in reason. Id.

Where a PFA order is involved, an indirect criminal contempt charge is designed to seek punishment for violation of the protective order. To establish indirect criminal contempt,[4] 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. Jackson, 10 A.3d 341, 346 (Pa. Super. 2010), citing

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

3 Hesser has not filed a response.

4 “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.” Commonwealth v. Baker, 722 A.2d 718, 720 (Pa. Super. 1999) (en banc) (citations omitted).

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Moreover,

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 decision. Williams v. Williams, [] 681 A.2d 181, 183 (Pa. Super. 1996)[.] 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) (citation

omitted).

At the ICC hearing, the complainant testified that she received a text

message from Hesser asking her to withdraw the PFA, that if she did not

withdraw the petition he would make her life “F’ing” miserable, that she would

be sorry, and that the parties’ child would hate her. N.T. ICC Hearing,

1/26/17, at 16. The complainant testified that she felt “aggravated [and]

frustrated” when she saw the text because they had just finalized the PFA

order. Id. While the complainant did make a written statement to a police

officer about the text message, id., she did not have any documentary

evidence of the actual text message at trial because she had switched cellular

phones and the subject text no longer existed. Id. at 17. Complainant,

however, testified that she “kn[ew Hesser’s] style when he talks to [her],” id.

at 18, and that while the text message began with a discussion regarding the

parties’ child, it “slowly veer[ed] off . . . putting [her] down . . . [with things]

not pertaining to [their] child.” Id.

Officer Steven Lada of the Wilkes-Barre City Police Department

responded to the complainant when she called the police department to report

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an alleged PFA violation. Officer Lada testified that the complainant showed

him the subject text messages, which included Hesser’s name as the name on

the sender’s phone. The officer took a written statement from the complainant

which he used to file the instant charges against Hesser. See Affidavit of

Probable Cause, Officer Steven Lada, 1/13/2017. Officer Lada testified that

he did not remember the text message “verbatim” but he put the things that

“stuck out to [him]” in his police report. Id. 22. Finally, the officer testified

that the complainant’s testimony was consistent with the written statement

she had provided to him on the day of the incident. Id. at 21.

Hesser testified that, when read in the proper context, the text message

concerned the “wellbeing” of the parties’ son and that it was not meant in any

way to be threatening or harassing to the complainant. Id. at 23-25. He

specifically testified that the portion of his message telling the complainant

that she “F’d up” was never directed at her, but rather was a conversation

about the parties’ son and the disconcerting state of the custody situation.

Id. at 22-25. Moreover, Hesser testified that he never texted the complainant

that he would make her life difficult. Id. at 23.

Here, the complainant’s testimony regarding the harassing nature of

Hesser’s text message was verified by Officer Lada at the ICC hearing and in

his affidavit of probable cause. While Hesser may contend that he did not

have the requisite intent to violate the PFA order, the fact remains that a

factfinder could infer his wrongful intent from the vulgar language used in the

text as well as the fact that the content of the text had nothing to do with

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visitation or custody regarding the parties’ son. Commonwealth v. Taylor,

137 A.3d 611 (Pa. Super. 2016) (no other legitimate reason for contemnor’s

text message could be discerned, other than to harass or annoy former wife).

Finally, we find the PFA order’s language clear that Hesser is only permitted

to contact the complainant via text message with regard to matters concerning

custody or visitation of the parties’ son.

Accordingly, we conclude that the trial court did not abuse its discretion

when it concluded that Hesser violated the PFA and, as a result, was guilty of

indirect criminal contempt. Kolansky, supra. The trial judge found the

complainant and Officer Lada credible with regard to the content of the text

message. When viewed in the light most favorable to the Commonwealth, the

testimony demonstrates that Hesser did not have the intent to discuss custody

or visitation matters, but rather to harass or threaten the complainant by

denigrating her and her parenting of the parties’ minor son. See

Commonwealth v. Brumbaugh, 932 A.2d 108, 111 (Pa. Super. 2007)

(“[W]rongful intent can be imputed by virtue of the substantial certainty that

[one's actions will be] in violation of the PFA Order.”); Commonwealth v.

Haigh, 874 A.2d 1174 (Pa. Super. 2005) (judges should use common sense

and consider context and surrounding factors in making determination as to

whether violation of PFA is truly intentional).

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Judgment of sentence affirmed. Counsel’s request to withdraw is

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/8/2017

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