J-A09024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA WILSON : : Appellant : No. 338 WDA 2020
Appeal from the Judgment of Sentence Entered January 31, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-MD-0005195-2019
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 9, 2021
Joshua Wilson appeals from the judgment of sentence imposed following
his conviction of indirect criminal contempt (“ICC”). After careful
consideration, we vacate the judgment of sentence, reverse the order of
conviction, and discharge Wilson.
The relevant factual and procedural history can be summarized as
follows. On August 3, 2019, Wilson was arrested for a domestic incident
involving his wife and one of their four minor children. Wilson was taken to
the Allegheny County Jail, where he remained due to his failure to post bond.
He was thereafter charged with EWOC, simple assault and harassment. On
August 5, 2019, Wilson’s wife obtained a temporary Protection From Abuse
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A09024-21
(“PFA”) order against Wilson, which prevented him from having any contact
with her or their children. On that same date, a copy of the temporary PFA
order, as well as a notice for the final PFA hearing scheduled for August 15,
2019, was served on Wilson in jail. The notice for the final PFA hearing warned
Wilson that it could go forward on August 15, 2019, with or without him, and
that a final PFA order could be issued against him at that time. Wilson, who
was still incarcerated August 15, 2019, elected not to attend the final PFA
hearing, which proceeded against him in absentia. Following the hearing, the
court entered a final PFA order against Wilson, effective August 15, 2019
through August 15, 2022. Notably, no notice of the final PFA order was served
on Wilson.
After the final PFA order was entered, Wilson made phone calls to his
home and sent letters and drawings to his wife, the children, and the family
dog. In total, he made 47 phone calls from jail and set two mailings containing
over 20 letters.1 Notably, Wilson, an artist, signed the letters not by use of
his real name, but by using the word “Inspire,” which is his artist signature,
and by his distinctive artist logo (a flower with eyeballs and no mouth).
Wilson’s wife was readily able to identify Wilson as the sender of the letters
due to his “distinctive writing patterns.”
1 Wilson’s mailings were postmarked on 8/4/19, and 10/15/19.
-2- J-A09024-21
On October 16, 2019, Wilson’s wife filed an ICC complaint based on
Wilson’s violations of the final PFA order. The trial court conducted a hearing
on the ICC complaint on November 22, 2019. Wilson appeared for the hearing
and, at that time, was personally served by the prosecutor with a copy of the
final PFA order. At the conclusion of the hearing, the trial court found Wilson
in ICC for violating the final PFA order. On January 31, 2020, the trial court
sentenced Wilson to six months of probation. Wilson filed a timely notice of
appeal. Both Wilson and the trial court complied with Pa.R.A.P. 1925.
On appeal, Wilson raises the following issue for our review: “Was the
evidence insufficient to sustain Wilson’s ICC conviction where the
Commonwealth cannot establish beyond a reasonable doubt that he received
oral or written notice of the final PFA order before he violated it?” Wilson’s
Brief at 4.
Our standard of review of an ICC conviction is abuse of discretion. See
Commonwealth v. Bowden, 838 A.2d 740, 761 (Pa. 2003). Discretion is
abused when the course pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or where the law is not
applied. Id. at 762.
A charge of ICC consists of a claim that a violation of an order or decree
of court occurred outside the presence of the court. See Commonwealth v.
Padilla, 885 A.2d 994 (Pa. Super. 2005). “Where a PFA order is involved, an
[ICC] charge is designed to seek punishment for violation of the protective
-3- J-A09024-21
order.” Id. at 996. As with those accused of any crime, “one charged with
[ICC] is to be provided the safeguards which statute and criminal procedures
afford.” Id. at 996-97 (citation omitted). To establish ICC, 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. See Commonwealth v. Ashton, 824 A.2d 1198, 1202 (Pa.
Super. 2003).
The Commonwealth may establish the notice element of ICC contempt
with evidence showing the defendant received actual notice or possessed the
equivalent knowledge of a PFA order. See Commonwealth v. Staton, 38
A.3d 785, 790 (Pa. 2012) (holding that the Commonwealth may rely upon
actual notice or equivalent knowledge of PFA order to prove application of
death penalty aggravator predicated on violation of PFA order); see also
Padilla, 885 A.2d at 997 (holding that the Commonwealth proves the notice
element of ICC where defendant has actual notice of the PFA order or the
constructive equivalent).
Wilson does not dispute that he received the temporary PFA order and
the notice for the final PFA hearing, which warned that it could go forward on
August 15, 2019, with or without him, and that a final PFA order could be
issued against him at that time. However, Wilson points out that notice of the
-4- J-A09024-21
possibility of an adverse ruling against him is not the same as notice that
there was, in fact, an adverse ruling against him. Wilson claims that the
Commonwealth presented no evidence that he was informed either verbally
or in writing (by the court, sheriff, or police) that a final PFA order had been
entered against him. Wilson claims that he had no notice that a final PFA
order had been entered against him until he was served with a copy of the
final PFA order by the prosecutor at the ICC hearing on November 22, 2019.
Wilson concedes that, pursuant to 23 Pa.C.S.A. § 6106(g), a PFA order
is enforceable whether or not the defendant was served with it. However, he
points out that § 6109(a) requires that the order be served on the plaintiff,
the defendant, and the police department with jurisdiction to enforce the
order. Wilson claims that there is no evidence that service was made to the
local police department in his neighborhood, or to the sheriff while he was in
the county jail.
Wilson distinguishes this case from Padilla, where the defendant had
not been served with a temporary PFA order but was nevertheless found to
have adequate “notice” of the order because he was advised of the temporary
Free access — add to your briefcase to read the full text and ask questions with AI
J-A09024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA WILSON : : Appellant : No. 338 WDA 2020
Appeal from the Judgment of Sentence Entered January 31, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-MD-0005195-2019
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 9, 2021
Joshua Wilson appeals from the judgment of sentence imposed following
his conviction of indirect criminal contempt (“ICC”). After careful
consideration, we vacate the judgment of sentence, reverse the order of
conviction, and discharge Wilson.
The relevant factual and procedural history can be summarized as
follows. On August 3, 2019, Wilson was arrested for a domestic incident
involving his wife and one of their four minor children. Wilson was taken to
the Allegheny County Jail, where he remained due to his failure to post bond.
He was thereafter charged with EWOC, simple assault and harassment. On
August 5, 2019, Wilson’s wife obtained a temporary Protection From Abuse
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A09024-21
(“PFA”) order against Wilson, which prevented him from having any contact
with her or their children. On that same date, a copy of the temporary PFA
order, as well as a notice for the final PFA hearing scheduled for August 15,
2019, was served on Wilson in jail. The notice for the final PFA hearing warned
Wilson that it could go forward on August 15, 2019, with or without him, and
that a final PFA order could be issued against him at that time. Wilson, who
was still incarcerated August 15, 2019, elected not to attend the final PFA
hearing, which proceeded against him in absentia. Following the hearing, the
court entered a final PFA order against Wilson, effective August 15, 2019
through August 15, 2022. Notably, no notice of the final PFA order was served
on Wilson.
After the final PFA order was entered, Wilson made phone calls to his
home and sent letters and drawings to his wife, the children, and the family
dog. In total, he made 47 phone calls from jail and set two mailings containing
over 20 letters.1 Notably, Wilson, an artist, signed the letters not by use of
his real name, but by using the word “Inspire,” which is his artist signature,
and by his distinctive artist logo (a flower with eyeballs and no mouth).
Wilson’s wife was readily able to identify Wilson as the sender of the letters
due to his “distinctive writing patterns.”
1 Wilson’s mailings were postmarked on 8/4/19, and 10/15/19.
-2- J-A09024-21
On October 16, 2019, Wilson’s wife filed an ICC complaint based on
Wilson’s violations of the final PFA order. The trial court conducted a hearing
on the ICC complaint on November 22, 2019. Wilson appeared for the hearing
and, at that time, was personally served by the prosecutor with a copy of the
final PFA order. At the conclusion of the hearing, the trial court found Wilson
in ICC for violating the final PFA order. On January 31, 2020, the trial court
sentenced Wilson to six months of probation. Wilson filed a timely notice of
appeal. Both Wilson and the trial court complied with Pa.R.A.P. 1925.
On appeal, Wilson raises the following issue for our review: “Was the
evidence insufficient to sustain Wilson’s ICC conviction where the
Commonwealth cannot establish beyond a reasonable doubt that he received
oral or written notice of the final PFA order before he violated it?” Wilson’s
Brief at 4.
Our standard of review of an ICC conviction is abuse of discretion. See
Commonwealth v. Bowden, 838 A.2d 740, 761 (Pa. 2003). Discretion is
abused when the course pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or where the law is not
applied. Id. at 762.
A charge of ICC consists of a claim that a violation of an order or decree
of court occurred outside the presence of the court. See Commonwealth v.
Padilla, 885 A.2d 994 (Pa. Super. 2005). “Where a PFA order is involved, an
[ICC] charge is designed to seek punishment for violation of the protective
-3- J-A09024-21
order.” Id. at 996. As with those accused of any crime, “one charged with
[ICC] is to be provided the safeguards which statute and criminal procedures
afford.” Id. at 996-97 (citation omitted). To establish ICC, 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. See Commonwealth v. Ashton, 824 A.2d 1198, 1202 (Pa.
Super. 2003).
The Commonwealth may establish the notice element of ICC contempt
with evidence showing the defendant received actual notice or possessed the
equivalent knowledge of a PFA order. See Commonwealth v. Staton, 38
A.3d 785, 790 (Pa. 2012) (holding that the Commonwealth may rely upon
actual notice or equivalent knowledge of PFA order to prove application of
death penalty aggravator predicated on violation of PFA order); see also
Padilla, 885 A.2d at 997 (holding that the Commonwealth proves the notice
element of ICC where defendant has actual notice of the PFA order or the
constructive equivalent).
Wilson does not dispute that he received the temporary PFA order and
the notice for the final PFA hearing, which warned that it could go forward on
August 15, 2019, with or without him, and that a final PFA order could be
issued against him at that time. However, Wilson points out that notice of the
-4- J-A09024-21
possibility of an adverse ruling against him is not the same as notice that
there was, in fact, an adverse ruling against him. Wilson claims that the
Commonwealth presented no evidence that he was informed either verbally
or in writing (by the court, sheriff, or police) that a final PFA order had been
entered against him. Wilson claims that he had no notice that a final PFA
order had been entered against him until he was served with a copy of the
final PFA order by the prosecutor at the ICC hearing on November 22, 2019.
Wilson concedes that, pursuant to 23 Pa.C.S.A. § 6106(g), a PFA order
is enforceable whether or not the defendant was served with it. However, he
points out that § 6109(a) requires that the order be served on the plaintiff,
the defendant, and the police department with jurisdiction to enforce the
order. Wilson claims that there is no evidence that service was made to the
local police department in his neighborhood, or to the sheriff while he was in
the county jail.
Wilson distinguishes this case from Padilla, where the defendant had
not been served with a temporary PFA order but was nevertheless found to
have adequate “notice” of the order because he was advised of the temporary
PFA order via voicemail by a police officer, and later advised in a telephone
call with the officer that a temporary PFA order had been issued against him.
The trial court considered Wilson’s issue but determined that it lacked
merit. The trial court reasoned that Wilson had notice of the temporary PFA
order and of the final PFA hearing, and when he chose not to attend the
-5- J-A09024-21
hearing, he ran the risk that a final PFA order would be entered against him.
In the trial court’s view, if one were to accept Wilson’s position, then no court
order would ever become effective until the defendant “chose to abide by
those orders.” See Trial Court Opinion, 6/30/20, at 5.
We disagree with the trial court’s reasoning. As explained above, a
defendant must have actual or constructive notice of a PFA order before the
defendant can be found to be in ICC of that order. See Staton, 38 A.3d at
790; Padilla, 885 A.2d at 997. Here, neither actual notice nor constructive
notice of the final PFA order was provided to Wilson. The notice of the
temporary PFA order and the notice that a final PFA hearing had been
scheduled did not inform Wilson that a final PFA order had, in fact, been
entered against him. Accordingly, Wilson, having received no actual or
constructive notice of the final PFA order, cannot be found in violation of that
order. For these reasons, the trial court abused its discretion in finding Wilson
in ICC of the final PFA order. Accordingly, we vacate the judgment of
sentence, reverse the order of conviction, and discharge Wilson.
Judgment of sentence vacated, order of conviction reversed, defendant
discharged.
-6- J-A09024-21
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/9/2021
-7-