Rivera, M. v. Gutierrez, L.

• Court: Superior Court of Pennsylvania
• Decided: February 24, 2022
• Docket: 1085 EDA 2021
• Status: Unpublished

Opinion

J-S36001-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MONICA RIVERA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LUIS CARLOS GUTIERREZ : : Appellant : No. 1085 EDA 2021

Appeal from the Judgment of Sentence Entered April 29, 2021 In the Court of Common Pleas of Delaware County Civil Division at No(s): 2018-80346

BEFORE: LAZARUS, J., KING, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 24, 2022

Luis Carlos Gutierrez (“Gutierrez”) appeals from the judgment of

sentence, entered in the Court of Common Pleas of Delaware County, following

his conviction for indirect criminal contempt1 after he violated a Protection

from Abuse (PFA) order. We affirm.

On September 17, 2017, Monica Rivera (“Rivera”) obtained a final PFA

Order (2017 PFA Order) against Gutierrez in the Lehigh County trial court for

the benefit of herself and two minor children, one of whom is also Gutierrez’s

daughter. The 2017 PFA Order was effective from September 12, 2017

through September 11, 2020. In relevant part, the 2017 PFA Order states ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 23 Pa.C.S. § 6114(a) (Contempt for violation of order or agreement). J-S36001-21

that Gutierrez, “shall not abuse, harass, stalk or threaten” protected

individuals. On March 12, 2018, the 2017 PFA Order was registered with the

Delaware County Court of Common Pleas. On August 23, 2018, the 2017 PFA

Order was amended by the Honorable Linda A. Cartisano, adding that “all text

messages are limited to emergency pick up and drop off times only.” 2 Trial

Court Order, 8/23/2018.

On January 18, 2020, Rivera reported to Haverford Police that there was

a PFA order in place against Gutierrez. Affidavit of Probable Cause, 1/18/20,

at 1. Rivera reported that Gutierrez called her from blocked phone numbers

and left threatening voicemails. Gutierrez also sent text messages to Rivera

that Rivera perceived as threatening. Affidavit of Probable Cause, 1/18/20.

That same day, Haverford Police charged Gutierrez with indirect criminal

contempt for violating the PFA Order. 23 Pa.C.S. § 6114(a); Affidavit of

Probable Cause, 1/18/20.

On April 29, 2021, the trial court conducted a trial, after which it

convicted Gutierrez of indirect criminal contempt and sentenced him to 6

months of probation. On May 27, 2021, Gutierrez filed a timely notice of

appeal. Gutierrez raises the following issue on appeal:

Whether the evidence is insufficient to sustain the conviction for indirect criminal contempt since the prosecution at trial failed to

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2 The 2017 PFA Order and 2018 Amendment together will be referred to as “PFA Order.”

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prove beyond a reasonable doubt that the terms of the protection from abuse order were sufficiently definite, clear, and specific, especially where the order at issue was never introduced into evidence?

Appellant’s Brief, at 5.

Our standard and scope of review are well settled:

The standard applied in reviewing the sufficiency of the evidence is whether, viewing all the evidence in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact- finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak[,] that as a matter of law[,] no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of [] proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all the evidence actually received must be considered. Finally, the trier[- ]of[-]fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part[,] or none of the evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004).

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

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(4) the contemnor must have acted with wrongful intent. Commonwealth

v. Ashton, 824 A.2d 1198, 1203 (Pa. Super. 2003); 23 Pa.C.S. § 6114.

Gutierrez challenges only the first element, claiming the PFA Order was

not sufficiently definite, clear, and specific because (1) the PFA Order was not

introduced into evidence, and (2) the PFA Order was not read or explained to

Gutierrez. Appellant’s Brief, at 13-14.

First, Gutierrez argues the PFA Order was not introduced into evidence

at trial and thus cannot be definite, clear and specific as to leave no doubt of

the conduct prohibited. Appellant’s Brief, at 4, citing Interest of D.S., 622

A.2d 854, 959 (Pa. Super. 1993). The Commonwealth counters that the PFA

Order was made part of the record because Gutierrez stipulated to its terms

and to receiving notice. Appellee’s Brief, at 11, citing N.T. Trial 4/29/21, at

3-4.

DISTRICT ATTORNEY: I believe that there would be a stipulation that there was notice and an active PFA at the end of [] December of 2019 when this was alleged to have accrued.

DEFENSE COUNSEL: That’s correct.

N.T. Trial, 4/29/21, at 3. The record reflects that Gutierrez stipulated to the

notice, terms, and effective date of the PFA Order. Having done so, Gutierrez

cannot now claim that the order was not sufficiently definite, clear, and specific

simply because it was not introduced into evidence. See Tyler v. King, 496

A.2d 16, 21 (Pa. Super. 1985) (“The court will hold a party bound to his

stipulation: concessions made in stipulations are judicial admissions, and

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accordingly may not later in the proceeding be contradicted by the party who

made them.”).

Second, Gutierrez argues there is no evidence showing the conditions

of the PFA Order were read or explained to him. Indeed, we agree with the

trial court that a party to a PFA order is presumed to have read the contents

of that order and therefore is held responsible for complying with it.

Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012). Here, where

Gutierrez stipulated to the PFA Order, his argument that the terms of the order

should have been read to him is meritless.

Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, the evidence is sufficient to support Gutierrez’s conviction

of indirect criminal contempt. Pappas, supra. Accordingly, we affirm

Gutierrez’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/24/2022

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