Zelaya, M. v. Gonzalez, R.

• Court: Superior Court of Pennsylvania
• Decided: April 15, 2026
• Docket: 1631 MDA 2024
• Status: Unpublished
• Author: Lane

Opinion

J-A04034-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MORAN ZELAYA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAUL GONZALEZ : : Appellant : No. 1631 MDA 2024

Appeal from the Judgment of Sentence Entered October 4, 2024 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): 2024-AB-0242

BEFORE: PANELLA, P.J.E., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED: APRIL 15, 2026

Raul Gonzalez (“Gonzalez”) appeals from the judgment of sentence

imposed following his conviction for indirect criminal contempt 1 (“ICC”) of a

Protection from Abuse2 (“PFA”) order. We affirm.

On September 3, 2024, the trial court entered a temporary PFA order

against Gonzalez, in favor of his estranged wife, Moran Zelaya (“Zelaya”),

pending a final PFA hearing. The temporary PFA order directed Gonzalez not

to “abuse, harass, stalk, threaten, or attempt to threaten to use physical force

against [Zelaya] in any place where [she] might be found” and prohibited him

from “ANY CONTACT with [Zelaya], or any other person protected under this

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1 See 23 Pa.C.S.A. § 6114(a).

2 See 23 Pa.C.S.A. §§ 6101-6122. J-A04034-26

order either directly or indirectly, at any location . . . .” Order, 9/3/24, at 1-

2.

After the entry of the temporary PFA order on September 3, 2024,

Zelaya was “scared of living in [her] apartment,” and thus temporarily moved

in with her sister and brother-in-law. N.T., 10/4/24, at 5-6. Her sister’s

apartment shared a wall with Gonzalez’s father’s apartment; however, Zelaya

had not seen Gonzalez in the area and did not know where he was living. See

id. at 6-7.

On September 25, 2024, when Zelaya, her family members and a friend

exited the apartment, “suddenly [Gonzalez] came out of nowhere” and began

recording Zelaya on his phone. Id. at 8. Gonzalez followed Zelaya into the

parking lot as she walked to her vehicle “with his phone out the whole time.”

Id. at 9. Gonzalez then entered his own vehicle and followed Zelaya’s vehicle

down the street, continuing to record her with his phone. When Zelaya’s

vehicle reached a stop sign and turned, Gonzalez stopped filming and drove

in the opposite direction. Zelaya reported Gonzalez’s actions to police, who

then filed a criminal complaint against Gonzalez for allegedly violating the

temporary PFA order. We note the trial court entered the final PFA order on

September 27, 2024.

On October 4, 2024, the trial court conducted a violation hearing.

Zelaya and her brother-in-law testified to the incident as summarized above.

Gonzalez testified in his own defense and admitted that he followed and

filmed Zelaya with his phone, explaining:

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. . . On that day I was going to an appointment with my attorneys and that person [sic] even though she knows she took a PFA out on me, she’s always around there every morning, every afternoon, every night. So I left the apartment and I find out . . . that they’re there. And I started to take some pictures of her brother-in-law who was in the car.

No, I did that because I didn’t really know what a PFA was. Well, because when I’ve called the police and called the Sheriff and I said well, can I take pictures? They said well, yeah, from a distance if you need evidence. Because I called them she’s always around me. I mean she’s always where I am.

****

. . . I had an appointment with my lawyer and it’s one way, the alley. And so there’s only one way to get out, so I had to and I was late so I had to wait for them to leave and then go out the same way. It’s always the same. I always have to wait for them, for her when she’s around. I have to wait for her to leave.

N.T., 10/4/24, at 23, 26. Gonzalez denied getting “up close” and testified that

he stayed “20 feet, 30 feet away” from Zelaya while he filmed. Id. at 25.

At the conclusion of the hearing, the trial court found Gonzalez guilty of

ICC and imposed a sentence of six months’ probation.

Gonzalez did not file any post-sentence motions. He filed a notice of

appeal. The trial court ordered Gonzalez to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal within twenty-one days. After

this deadline, Gonzalez filed a motion for extension of time to file a Rule

1925(b) statement, stating that the transcript was unavailable. The trial court

granted an extension, and Gonzalez filed a Rule 1925(b) statement after the

purported extended deadline.

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Gonzalez presents the following issues for our review:

1. [Were] Gonzalez’s notice of appeal and subsequent 1925(b) concise statement timely filed?

2. Was the evidence insufficient to prove that . . . Gonzalez intentionally and volitionally violated the protection order where . . . Gonzalez did not have proper notice of prohibited acts of the protection order; the [protection] order was not sufficiently clear that: (1) the act of recording was a prohibited act under the protection order; and (2) . . . Gonzalez was prohibited from making records “to protect himself in the future?”

3. Was the verdict against the weight of the evidence where [Zelaya] lied about her place of residence and [Gonzalez’s] acts were in no way a volitional or intentional means to violate the protection order?

Gonzalez’ Brief at 5 (unnecessary capitalization omitted).

In Gonzalez’s first issue, he avers that both his notice of appeal and Rule

1925(b) statement were timely. In its opinion, the trial court suggested that

both were untimely.

We first note that “this Court has no jurisdiction over an untimely

appeal.” Commonwealth v. Williams, 255 A.3d 565, 570 (Pa. Super. 2021)

(citation omitted). The trial court entered its order on October 4, 2024; thus,

the deadline to file the notice of appeal was Sunday, November 3, 2024. See

Pa.R.A.P. 903(a) (providing that an appellant must file a notice of appeal

“within [thirty] days after the entry of the order from which the appeal is

taken”). Gonzalez filed the notice of appeal the next day on Monday,

November 4, 2024. See 1 Pa.C.S.A. § 1908 (providing “[w]henever the last

day of any such period shall fall on Saturday or Sunday . . . such day shall be

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omitted from the computation”). We therefore conclude Gonzalez filed a

timely notice of appeal.

With respect to the Rule 1925(b) statement, we note the following.

Pennsylvania Rule of Appellate Procedure 1925(b)(2)(ii) provides: “If a party

has ordered but not received a transcript necessary to develop the Statement,

that party may request an extension of the deadline to file the Statement until

21 days following the date of entry on the docket of the transcript in

accordance with Pa.R.A.P. 1922(b).” Pa.R.A.P. 1925(b)(2)(ii). An appellant

seeking to extend time to file a Rule 1925(b) concise statement must do so in

writing, with good cause shown, within the twenty-one day time limit provided

for in Rule 1925(b)(2). See Commonwealth v. Gravely, 970 A.2d 1137,

1145 (Pa. 2009).

Generally, the failure to file a court-ordered Rule 1925(b) statement will

result in waiver of all issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii).

However, we deem a criminal defendant’s attorney’s failure to file a timely

Rule 1925(b) statement, which would result in the waiver of all issues on

appeal, to be per se ineffectiveness. See Commonwealth v. Burton, 973

A.2d 428, 432-33 (Pa. Super. 2009). In such instances, an appellant is

entitled to prompt relief. See id. at 433. Rather than remand the matter and

further delay appellate review, “this Court may decide the appeal on the merits

if the trial court had adequate opportunity to prepare an opinion addressing

the issues being raised on appeal.” Id.

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On November 14, 2024, the trial court ordered Gonzalez to file a Rule

1925(b) statement within twenty-one days, or by Thursday, December 5,

2024. Gonzalez did not file a motion to extend time until December 9, 2024,

four days after the deadline. The trial court purported to grant it on December

13, 2024. We determine, however, that because Gonzalez failed to file a

timely motion for extension of time, the trial court had no authority to grant

it, and Gonzalez’s subsequently filed Rule 1925(b) statement was untimely.3

See Gravely, 970 A.2d at 1145.

Rather than determining that Gonzalez has waived all issues for appeal,

however, we deem that his attorney’s untimely filing is per se ineffective

assistance of counsel, for which Gonzalez is entitled to prompt relief. See

Burton, 973 A.2d at 433. Here, the trial court addressed Gonzalez’s issues

3 Both the trial court and Gonzalez focus their discussion on the timeliness of

the ultimately-filed Rule 1925(b) statement, specifically with respect to the date the court clerk entered the transcript on the docket. See Trial Court Opinion, 1/28/25, at 4 (reasoning that Gonzalez filed the Rule 1925(b) statement on January 22, 2025, more than twenty-one days after the filing of the transcript on December 19, 2024); see also Gonzalez’s Brief at 12 (arguing that Gonzalez requested electronic delivery of a digital copy of the transcript, but “unbeknownst to” him, the court clerk mailed a hard copy, Gonzalez could not review the transcript until December 23, 2024, four days after its entry on the docket, and thus this Court should deem the filing of the transcript to be the date that he received the transcript). Gonzalez, however, does not cite any case law or statute, nor have we discovered any, that permits this Court to consider for purposes of timeliness any date other than a document’s date of entry onto the docket. Nevertheless, as we discuss above, we determine the motion for an extension itself was untimely and base our disposition on this finding.

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in its Rule 1925(a) opinion. Therefore, we need not remand this matter and

will proceed to review the merits of the appeal. See id.

In his second issue, Gonzalez challenges the sufficiency of the evidence

underlying his conviction for ICC. He argues that the temporary PFA order

was unclear as to which acts were prohibited, and that the Commonwealth

failed to prove he “knowingly violated the order . . . with wrongful intent.”

Gonzalez’s Brief at 16, 20.4

Our standard of review when considering a challenge to the sufficiency

of the evidence is well settled:

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 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. Smith, 288 A.3d 126, 131 (Pa. Super. 2022) (citation

omitted).

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 ____________________________________________

4 Gonzalez also argues that the Commonwealth did not prove that he had notice of the PFA order and that there was confusion over the date of the alleged violation. However, Gonzalez failed to raise this claim in his Rule 1925(b) concise statement. Therefore, we deem this claim waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived”).

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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.

Id. (citation omitted). “When reviewing a contempt conviction[,] we are

confined to a determination of whether the facts support the trial court

decision. We will reverse a trial court’s determination only when there has

been a plain abuse of discretion.” Commonwealth v. Brumbaugh, 932 A.2d

108, 111 (Pa. Super. 2007) (citation omitted).

Gonzalez argues that the temporary PFA order “was entirely unclear on

what actions were prohibited” and that it did not make “any mention of the

prohibition of public recording of another party.” Gonzalez’s Brief at 16

(emphasis in the original). Gonzalez claims there was “absolutely no evidence

to suggest that [he] abused, harassed, stalked, threatened, or attempted . .

. to use physical force against” Zelaya. Id. at 16-17. He avers that “[n]othing

in the definition of ‘contacts[,]’ nor the behaviors prevented as outlined in the

[PFA] order[,] prevent [him] from publicly recording [Jimenez] for the purpose

of gathering evidence for himself in a subsequent PFA hearing.” Id. at 17.

Gonzalez further contends that the Commonwealth failed to prove that

he “violated the order with wrongful intent or with the purpose of violating

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said order.” Id. at 20. He argues that he called the sheriff’s office before

filming Zelaya to ensure compliance with the PFA, and that he followed and

filmed Zelaya because wanted to “collect[] evidence to be used later on

against” her. Id. at 21-22.

Addressing Gonzalez’s claim that the PFA order did not prohibit him from

following and filming Zelaya, the trial court reasoned:

Although the temporary order did not specify that [Gonzalez] was not permitted to film [Zelaya], it specifically prohibited Gonzalez from having direct or indirect contact with [Zelaya]. The temporary order further prohibited [Gonzalez] from subjecting [Zelaya] to harassment. Section 6102 of the PFA, entitled “Definitions” does not include a definition of “harass.” However, subsection [6102(b)] provides that “[t]erms not otherwise defined in this chapter shall have the meaning given to them in 18 Pa.C.S. (relating to crimes and offenses).” 23 Pa.C.S.A. § 6102(b). Pursuant to the Crimes Code, a person is guilty of “harassment” when, “with intent to harass, annoy or alarm another, the person follows the other person in or about a public place or places.” 18 Pa.C.S.A. § 2709(a)(2).

We believe Gonzalez’s conduct of approaching [Zelaya], even if within 20 to 30 feet as claimed by [Gonzalez], following and filming [Zelaya] from her relative’s apartment into the parking lot, and then following and filming her in a moving vehicle[,] was designed to harass, annoy and alarm [Zelaya]. The language of the temporary order sufficiently apprised [Gonzalez] that this conduct was prohibited and that engaging in such conduct would constitute a violation of that order.

Trial Court Opinion, 1/28/25, at 9-10 (unnecessary capitalization omitted and

paragraph break added).

After review of the record, we determine that the record supports the

trial court’s finding of guilt on Gonzalez’s ICC charge. See Smith, 288 A.3d

at 131. First, the language of the temporary PFA order provided sufficient

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notice to Gonzalez regarding prohibited conduct. Specifically, the order

prohibited Gonzalez from “any contact,” direct or indirect, with Zelaya, and

explicitly ordered him not to, inter alia, “abuse, harass [or] stalk” her.

Temporary PFA Order, 9/3/24, at 2. As the trial court explained in its opinion,

Gonzalez’s act of following and recording Zelaya was harassment, and the

plain language of the temporary PFA order unambiguously prohibited this

conduct. See 18 Pa.C.S.A. § 2709(a)(2). Thus, we conclude that the record

supports the trial court’s finding Gonzalez guilty of ICC, even though the

temporary PFA order did not expressly prohibit filming.

Second, the trial court reasoned that Gonzalez did violate the temporary

PFA order intentionally:

[Gonzalez] claims that the evidence showed only that he recorded [Zelaya] in order to protect himself in the future. While we recognized that [Gonzalez] used this excuse at the hearing and acknowledged the facial validity of such a concern, we did not find that his actions were taken merely for that purpose. Instead, we specifically noted that neither [Zelaya] nor any of the others in her group initiated any contact with [Gonzalez]. We opined that [Gonzalez] should not have placed himself in proximity to [Zelaya] in this manner and that his actions were certain to annoy and/or alarm her. We found that this was the true purpose of [Gonzalez’s] conduct and, for that reason, found that he had violated the temporary order.

Trial Court Opinion, 1/28/25, at 10-11 (unnecessary capitalization omitted).

Based on our review, we conclude the evidence sufficiently supports the

trial court’s finding that Gonzalez intentionally violated the temporary PFA

order. See Smith, 288 A.3d at 131. Gonzalez deliberately followed Zelaya

into the parking lot and recorded her on his phone. He then entered his own

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vehicle to continue following and filming Zelaya until her vehicle turned at the

end of the block. Regardless of Gonzalez’s stated purpose to “collect

evidence” against Zelaya, his conduct demonstrated his intent to “annoy or

alarm her” in violation of the temporary PFA order. See N.T., 10/4/24, at 22;

see also 18 Pa.C.S.A. § 2709(a)(2). Thus, we conclude the record supports

the trial court’s finding Gonzalez guilty of ICC based on this evidence.

Accordingly, no relief is due on his second issue.

In his final issue, Gonzalez claims that the verdict was against the

weight of the evidence, arguing that Zelaya’s “testimony was incredible” and

that she sought out Gonzalez “to instigate a conflict.” Gonzalez’s Brief at 24-

25.

As a preliminary matter, we must determine whether Gonzalez

preserved this issue for our review.

[A] weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607. Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion.

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (some

citations omitted). “The fact that [an a]ppellant included an issue challenging

the verdict on weight of the evidence grounds in his 1925(b) statement and

the trial court addressed [his] weight claim in its Pa.R.A.P. 1925(a) opinion

[does] not preserve his weight of the evidence claim for appellate review in

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the absence of an earlier motion.” Commonwealth v. Sherwood, 982 A.2d

483, 494 (Pa. 2009).)

In the instant case, Gonzalez raises his weight claim for the first time

on appeal. Gonzalez did not challenge the weight of the evidence at

sentencing or in a post sentence motion. In his Rule 1925(b) statement,

Gonzalez did not include “weight of the evidence” language, but raised an

issue challenging the trial court’s credibility determinations. Concise

Statement, 1/22/25, at unnumbered 1. The trial court then addressed the

merits of this issue in its opinion. However, Gonzalez’s inclusion of a challenge

to the weight of the evidence, for the first time in a Rule 1925(b) concise

statement, did not preserve his issue, “even if the trial court addresse[d] the

issue in its opinion.” Thompson, 93 A.3d at 490. We therefore conclude that

Gonzalez failed to preserve this issue for our review and it is waived.

For the foregoing reasons, we conclude that none of Gonzalez’s claims

merit relief. We thus affirm the judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/15/2026

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