Com. v. Schultz, D., Sr.

• Court: Superior Court of Pennsylvania
• Decided: March 30, 2023
• Docket: 1246 MDA 2022
• Status: Unpublished

Opinion

J-S06045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID LEE SCHULTZ, SR. : : Appellant : No. 1246 MDA 2022

Appeal from the Judgment of Sentence Entered August 23, 2022 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-MD-0000105-2022

BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 30, 2023

David Lee Schultz, Sr. appeals1 from the August 23, 2022 amended

judgment of sentence of 3 to 6 months’ imprisonment and a $100 fine and

court costs imposed after he was found guilty of indirect criminal contempt2

of a Protection From Abuse (“PFA”) order. After careful review, we affirm the

judgment of sentence.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Appellant purports to appeal from the August 4, 2022 judgment of sentence, but his appeal properly lies from the trial court’s August 23, 2022 amended judgment of sentence, which imposed a $100 fine and court costs in addition to the original 3 to 6 month term of imprisonment. See Commonwealth v. Garzone, 993 A.2d 1245, 1254 n.6 (Pa.Super. 2010) (holding that in cases where the trial court amends the judgment of sentence during the period it retains jurisdiction pursuant to 42 Pa.C.S.A. § 5505, a direct appeal lies from the amended judgment of sentence), affirmed, 34 A.3d 67 (Pa. 2012).

2 23 Pa.C.S.A. § 6114(a). J-S06045-23

The trial court summarized the relevant facts of this case as follows:

[Appellant] was subject to a [PFA] order. He was ordered to have no contact with his wife. Nevertheless, [on May 3, 2022, Appellant live- streamed] a video of himself on social media. He was musing with unnamed friends about the most painful way to kill someone. The video is horrendously chilling, particularly if you are a person who has already been subjected to violence and who believes the video was directed at her. Although [Appellant] carefully refrains from naming his wife specifically in the video, the video is clear that [Appellant] is directing the comments to only one person. The video was sent to wife by a social media acquaintance who was part of an online survivors of domestic violence group.

[On May 5, 2022,] after wife found out about the video, [Appellant] texted wife accusing her of sending the video to his employer and getting him fired. Wife denied sending the video to the employer.

Trial court opinion, 10/12/22 at 2 (footnote and citations omitted).

Appellant was subsequently arrested in connection with this incident and

charged with one count of indirect criminal contempt of the PFA order. The

trial court held hearings on the indirect criminal contempt charge on June 8

and August 4, 2022. At the conclusion of the August 4, 2022 hearing, the trial

court found Appellant guilty of one count of indirect criminal contempt and

sentenced him to 3 to 6 months’ imprisonment.

On August 16, 2022, the Commonwealth filed a motion to amend the

judgment of sentence. The trial court granted the Commonwealth’s motion

on August 23, 2022. That same day, the trial court amended Appellant’s

-2- J-S06045-23

judgment of sentence to include a $100 fine and court costs. This timely

appeal followed on September 6, 2022.3

Appellant raises the following issues for our review:

1. Did the Commonwealth sustain [its] burden of proof in finding [Appellant] guilty of indirect criminal contempt?

2. Did the trial court commit an error of law in allowing the admission of an exhibit which had not been authenticated or complete?

Appellant’s brief at 4 (extraneous capitalization omitted).

Appellant first argues that there was insufficient evidence to sustain his

conviction for indirect criminal contempt because the Commonwealth failed to

prove that he had any contact with the subject of the PFA order, nor “was the

victim of the [PFA] order ever mentioned in the video[,] … addressed in the

video[, or] … sent a copy of the video by [Appellant] or members of the

conversation.” Appellant’s brief at 8-9.

Our standard of review in evaluating a challenge to the sufficiency of

the evidence is as follows:

In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to prove every element of the offense beyond a reasonable doubt. As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact- finder. Any question of doubt is for the fact-finder ____________________________________________

3 Appellant and the trial court have complied with Pa.R.A.P. 1925.

-3- J-S06045-23

unless the evidence is so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations

omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

A court may hold a defendant in indirect criminal contempt and punish

him in accordance with the law where the police have filed charges of indirect

criminal contempt against the defendant for violating a PFA order issued

pursuant to the domestic relations code. 23 Pa.C.S.A. § 6114(a).

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.

....

To establish indirect criminal contempt, it must be shown that 1) the order was sufficiently clear to the contemnor as to leave no doubt of the conduct prohibited; 2) the contemnor had notice of the order; 3) the act must have been one prohibited by the order; and 4) the intent of the contemnor in committing the act must have been wrongful.

Commonwealth v. Padilla, 885 A.2d 994, 996-997 (Pa.Super. 2005)

(citations and internal quotation marks omitted), appeal denied, 897 A.2d

454 (Pa. 2006).

Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we find that there was sufficient evidence to sustain

Appellant’s conviction for indirect criminal contempt of the PFA order. Here,

-4- J-S06045-23

the order at issue clearly prohibited Appellant, with certain exceptions

regarding the parties’ child, “from having ANY CONTACT with [victim], or any

other person protected under this order either directly or indirectly, at any

location, including but not limited to any contact at [victim’s] or other

protected party’s school, business, or place of employment” . . . “by telephone

or by any other means….” PFA order, 2/25/21 at ¶¶ 3-4; Commonwealth’s

Exhibit No. 1.

During the contempt hearings, the trial court had the opportunity to

view an eight-minute segment of a video that Appellant live-streamed on

Facebook wherein he discussed with a number of unidentified individuals in a

group chat the best ways to murder a person and which methods would be

the most painful. See Commonwealth’s Exhibit No. 3; see also notes of

testimony, 8/4/22, at 5-6, 10. In said video, Appellant mused that there is a

“certain someone” that he would love to see her throat slit. Affidavit of

Probable Cause, 5/11/22 at 1, ¶ 5.

The trial court found that Appellant violated the PFA by “indirectly, but

pointedly threaten[ing victim] with unspeakable death and torture through

social media.” Trial court opinion, 10/12/22 at 5. In support of this

conclusion, the trial court reasoned as follows:

In all honesty, this is the worst video I have ever seen that talked about the best way to kill people. And people that are sitting around in chatrooms talking about that are scary people. So your friends are scary, if that’s what you sit around and talk about. You’re certainly not talking about puppy dogs and

-5- J-S06045-23

cotton candy, you’re talking about the best way to kill people. It goes on about, “Oh, a bullet to the head would be too easy ‘cause there’s no pain.” There [are] other kinds of “Burning might not be too good, that might not be harsh enough. Paper cuts where you just sit there and cut the femoral artery and watch somebody bleed out, that would be a great way to do it.” That’s what this video said. It goes on and on and on about the best ways to kill people, eight minutes of it.

I don’t get it, [Appellant]. You’re a bright guy, you’re not a dopey guy, you’re a bright guy. And where we’re going on this, let me put this on top of it all: You put that out there, anybody can watch it, can get that back to [victim] and tell her about it and show her the video. And now we have the video and that’s an indirect threat. If I ever heard an indirect threat, that’s an indirect threat.

When you put things out there on social media, it’s an indirect threat to people, even though you might not hear it. It is, it’s common sense. And there’s no way -- anybody who watches this thing would be scared to death of you, would be scared to death of you. We watched it before, maybe not everybody in here saw it, but you got a drift of what I was just saying. Eight minutes on the best way to kill people. And he has an outstanding PFA and puts that on social media, of course somebody is going to run to his ex who has a PFA and tell her that, it’s going to scare the heck out of her, which it would me. Scares the heck out of me just sitting here talking to you about it.

Notes of testimony, 8/4/22 at 15-17.

The record further reflects that Appellant contacted the victim via text

message two days after the video was live-streamed – which in and of itself

is a violation of the PFA order – and accused her of sending the video to his

-6- J-S06045-23

employer and getting him fired. Notes of testimony, 6/8/22 at 7-9; see also

Commonwealth’s Exhibit No. 2.

Additionally, the trial court heard testimony from the victim, who

indicated that she was sent the video by one of her acquaintances in an online

domestic violence survivors’ group, see notes of testimony, 6/8/22 at 12, and

that Appellant’s actions placed her in fear.

Q. Was there anything in the video that was disturbing to you?

A. The whole thing.

Q. And how did seeing the message and getting this message by text message make you feel with regard –

A. It made me extremely anxious. I felt like, at that point, he was going to have nothing to lose and he was going to be really mad and could come after me.

Id. at 6, 9.

Based on all of the foregoing, we discern no error on the part of the trial

court in finding that the Commonwealth presented sufficient evidence to

support Appellant’s conviction for indirect criminal contempt. Appellant’s

claim to the contrary must fail.

Appellant next argues that the trial court abused its discretion in

admitting the aforementioned eight-minute video into evidence, because this

-7- J-S06045-23

video was not “authenticated [or] verified” and was only a portion of a larger,

40-minute conversation. Appellant’s brief at 10-12. We disagree.

“[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa.Super. 2012) (citation omitted), appeal denied, 76 A.3d 538 (Pa. 2013).

The threshold inquiry with admission of evidence is whether the evidence is relevant. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact. In addition, evidence is only admissible where the probative value of the evidence outweighs its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 750 (Pa.Super. 2014) (citations

and internal quotation marks omitted), appeal denied, 95 A.3d 275 (Pa.

2014); see also Pa.R.E. 401(a), (b).

Instantly, the trial court found that there was no evidence at the

hearings that the 8-minute video segment introduced by the Commonwealth

was out of context. Trial court opinion, 10/12/22 at 3, n.1. The record further

reflects that Appellant failed to present any evidence challenging its

authenticity or asserting that the remaining portion of the video was somehow

exculpatory. On the contrary, Appellant acknowledged that it he was the one

speaking on the video in question. Notes of testimony, 8/4/22 at 5-6. The

trial court, as factfinder, was in the best position to evaluate the relevancy of

-8- J-S06045-23

the 8-minute video segment and determine its admissibility. Accordingly, we

discern no error on the part of the trial court in admitting said portion of the

video into evidence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/30/2023

-9-