J-S96008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

VAUGHN YOUNG,

                            Appellant               No. 1984 WDA 2015


      Appeal from the Judgment of Sentence Entered November 18, 2015
              In the Court of Common Pleas of Allegheny County
                     Family Court at No(s): FD-11-001438


BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED JANUARY 23, 2017

        Appellant, Vaughn Young, appeals from the judgment of sentence of

an aggregate term of 1 year incarceration, imposed after he was convicted

of two counts of indirect criminal contempt (ICC). Appellant challenges the

sufficiency of the evidence to support his convictions. After careful review,

we affirm.

        The trial court summarized the underlying procedural history of this

case as follows:

              Family Division Plaintiff Tamara Reese sought and obtained
        a temporary [Protection From Abuse (PFA)] Order against her
        ex-boyfriend, [Appellant] … on September 8, 2011.[1] A final
        hearing was held, and a final PFA Order was entered on
        September 19, 2011. Thereafter, [Appellant] was arrested and

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1
    See Protection From Abuse Act, 23 Pa.C.S. §§ 6101-6122.
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       charged with numerous counts of [ICC] for violating that
       PFA….[2]

       …

             [Appellant] was subsequently arrested on August 21, 2015
       and October 23, 2015 for additional violations of the no-contact
       provisions of the PFA. A hearing on those charges was held
       before this [c]ourt on November 18, 2015. [Appellant] was
       found guilty of both counts of [ICC] and was sentenced to two
       (2) consecutive terms of imprisonment of six (6) months.

TCO at 1-3.

       Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Therein, Appellant raised two issues:

       a. The evidence was insufficient to prove, beyond a reasonable
       doubt, that [Appellant] had prohibited contact with the protected
       parties noted within the [PFA] order.

       b. [The trial] [c]ourt erred in not granting [Appellant’s] Petition
       to accept Post-Sentence Motion Nunc Pro Tunc, thus preventing
       him from raising certain claims on appeal as they were not
       preserved through the required post-sentence motions.

Rule 1925(b) Statement, 2/18/16, at ¶ 10.



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2
  The trial court lists the dates and dispositions for each of Appellant’s ICC
charges. See Trial Court Opinion (TCO), 4/12/16, at 2. Briefly, several of
Appellant’s earliest ICC charges were dismissed because Reese failed to
appear for court or “did not wish to proceed[.]” Id. Appellant pled guilty to
six other ICC charges stemming from conduct in 2014 and early 2015. For
those convictions, he received consecutive terms of probation. In June of
2015, Appellant was convicted of another count of ICC and sentenced to 90
days’ incarceration. Following that conviction, the PFA order was extended
until July of 2018.




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      Now, on appeal, Appellant has abandoned the second claim raised in

his concise statement, and he presents only the following issue concerning

the sufficiency of the evidence to support his convictions:

      I. Was the evidence … insufficient as a matter of law to convict
      [Appellant] of either count of [ICC] where the language of the
      PFA order was not so clear, definite and specific as to leave no
      doubt that [Appellant’s] conduct was prohibited and where the
      Commonwealth failed to prove beyond a reasonable doubt that
      [Appellant] acted with wrongful intent?

Appellant’s Brief at 4.

      It is apparent that the precise arguments Appellant asserts herein

were not specifically set forth in his Rule 1925(b) statement. Typically, we

would conclude that Appellant has waived those claims for our review. See

Commonwealth v. Lord, 719 A.2d 306, 309 (P. 1998) (creating the bright-

line rule that “[a]ppellants must comply whenever the trial court orders

them to file a Statement of [Errors] Complained of on Appeal pursuant to

Rule 1925[,]” and “[a]ny issues not raised in a [Rule] 1925(b) statement will

be deemed waived.”); see also Pa.R.A.P. 1925(b)(4)(vii).       However, our

review of the record reveals that the trial court’s order did not comply with

the dictates of Rule 1925(b)(3).      Specifically, the court did not inform

Appellant “that any issue not properly included in the Statement … shall be

deemed waived.”      Pa.R.A.P. 1925(b)(3).   Consequently, we will not deem

Appellant’s claims waived for our review.        See Greater Erie Indus.

Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa.

Super. 2014) (en banc) (holding that, “[i]n determining whether an


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appellant has waived his issues on appeal based on non-compliance with

[Rule] 1925, it is the trial court’s order that triggers an appellant’s

obligation[;] … therefore, we look first to the language of that order”)

(citations omitted).

      Before examining the merits of Appellant’s challenge to the sufficiency

of the evidence to sustain his ICC convictions, we note that:

             [W]hen reviewing a contempt conviction, much reliance is
      given to the discretion of the trial judge. Accordingly, we are
      confined to a determination of whether the facts support the trial
      court's decision. We will reverse a trial court's determination only
      when there has been a plain abuse of discretion. Yet we remain
      mindful that the power to impose a sanction of criminal
      contempt should not be used when a lesser means would suffice,
      as it is an actual criminal conviction.

            A finding of criminal contempt must be supported by the
      following four elements:

      (1) The [court's] order or decree must be definite, clear, specific
      and leave no doubt or uncertainty in the mind of the person to
      whom it was addressed of the conduct prohibited;

      (2) The contemnor must have had notice of the specific order or
      decree,

      (3) The act constituting the violation must have been volitional;
      and

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

Commonwealth v. Haigh, 874 A.2d 1174, 1176–77 (Pa. Super. 2005)

(internal citations and quotation marks omitted).

      Presently, Appellant first challenges his conviction of ICC stemming

from his conduct on August 21, 2015. On that date, Appellant

      contacted Tamara Reese’s mother, sister and brother-in-law on
      Facebook in an attempt to get them to ‘talk some sense into’

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      Tamara regarding dropping the PFA and letting [Appellant] see
      their daughter, … who is also a protected party under the PFA.
      [Appellant] also contacted [the daughter’s] school to inquire
      about her.

TCO at 3.   According to Appellant, the language of the PFA order did not

clearly and definitively inform him “that contacting Reese’s family members

to determine [his daughter’s] well-being and to express his desire to have a

relationship with [his daughter] was prohibited….” Appellant’s Brief at 11.

      Appellant’s argument is unconvincing.    Initially, the evidence at the

ICC hearing demonstrated that Appellant did not contact Reese’s family for

the sole purpose of inquiring about his daughter’s well-being, or to inform

them that he wished to have a relationship with his daughter.         Rather,

Appellant sent Facebook messages to three members of Reese’s family in an

attempt to have those third parties talk to Reese and convince her to drop

the PFA order and/or to allow Appellant to see their daughter. For instance,

Ebony Evans, Reese’s sister, testified that she read messages that Appellant

wrote to her husband in which Appellant was “trying to get my husband to

talk to my sister about letting him see [his daughter]” and “to talk to

[Reese] as her family” about the PFA order. N.T., 11/18/15, at 14. Evans

further testified that Appellant sent her messages on Facebook asking her to

“talk some sense into” Reese.    Id. at 17.    Additionally, Reese’s mother,

Terry Lunsford, took the stand at the hearing and testified that she also

received a message from Appellant on Facebook asking her “to talk to [her]

daughter because they were having problems.” Id. at 21.



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     The testimony by Evans and Lunsford proved that Appellant contacted

members of Reese’s family for the purpose of having those individuals

contact Reese to encourage her to drop the PFA order and/or allow

Appellant to see their daughter.   The PFA order unambiguously states that

Appellant “shall not contact Plaintiff, or any other person protected under

this order, either directly or indirectly, by telephone or any other means,

including through third persons.”         Final PFA Order, 9/15/11, at 2

(emphasis added). This language clearly notified Appellant that contacting

Reese’s family members, for the purpose of having them communicate with

Reese, was prohibited.

     Moreover, we reject Appellant’s argument that his communication with

these third parties did not violate the PFA order because he only told them

“to discuss the matter with Reese amongst themselves.” Appellant’s Brief

at 16 (emphasis in original). While Appellant may not have asked Reese’s

family members to relay any specific message to her, his request that they

‘talk to Reese’ was obviously an attempt to have them communicate to

Reese Appellant’s desire to see his daughter, and his hope that she would

drop the PFA against him.      The language of the PFA order explicitly

precluded such indirect contact through third parties.   Thus, the evidence




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was sufficient to support Appellant’s ICC conviction for his conduct on

August 21, 2015.3

       Likewise,    we    also   deem      meritless   Appellant’s   claim   that   the

Commonwealth failed to present sufficient evidence to sustain his ICC

conviction stemming from his October 23, 2015 act of sending Reese a

‘friend request’ on Facebook. Appellant asserts that this act did not violate

the PFA order because it was non-threatening and de minimus, similar to the

appellant’s conduct in Commonwealth v. Haigh, 874 A.2d 1174 (Pa.

Super. 2005). In that case, Haigh’s wife had obtained a PFA order against

him. During an ICC hearing based on Haigh’s allegedly violating that order,

he asked his wife, who had just undergone a recent surgery, if she was

“okay[,]” and he “urged her to write him in prison about her prognosis.”

Haigh, 874 A.2d at 1176.           For these comments, Haigh was charged with

another count of ICC, and he was ultimately convicted of that offense.

       On appeal, this Court reversed Haigh’s conviction on the following

grounds:
              In the case sub judice, the final PFA order prohibited
       [Haigh] from having any contact with his wife “at any location.”
       Although this language seems unambiguous on its face, context
       ultimately caused confusion for [Haigh] in that he was literally
       brought into a form of contact with his wife during the PFA
       violation hearing. Moreover, both [Haigh] and Mrs. Haigh had
____________________________________________


3
  Because Appellant’s communication with Reese’s family members was
sufficient to sustain that ICC conviction, we need not assess whether his act
of calling his daughter’s school on August 21, 2015, also violated the PFA
order.



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     the opportunity to speak at this hearing. A reasonable person
     could have believed, and [Haigh] did believe, that the PFA order
     was relaxed to some extent in the courtroom context, especially
     where [Haigh] was shackled and the victim was protected by an
     armed deputy sheriff. [Haigh] did not believe that he was
     threatening Mrs. Haigh, and neither she nor any one [sic] else in
     the courtroom heard [Haigh] threaten her or otherwise make
     any threatening movements or gestures towards her. [Haigh’s]
     questions arose from his concern for the health of his wife of
     thirty-one years, even though they were estranged at the time.
     After a thorough review of the record, we conclude, based upon
     all of the circumstances, that [Haigh] did not act with wrongful
     intent by engaging in this conversation with his wife in the
     courtroom.4 Intentionally acting in such a manner, in the
     presence of Judge Campbell, the deputy sheriff, the prosecutor
     and every other person gathered in the court room, would have
     been nothing short of irrational, and there is nothing in the
     record to indicate that Appellant was in any way irrational on the
     day of the hearing. In fact, the judge concluded that [Haigh] was
     sufficiently rational to enter guilty pleas to two prior violations of
     the PFA at the very same hearing.
        4
          Indeed, in actuality, Appellant's conversing with his wife
        while in the courtroom does not even fit within the
        definition of indirect criminal contempt, which addresses
        contemptuous actions outside the presence of the
        court. See [Commonwealth v.] Baker, 722 A.2d 718
        (Pa. Super. 1998) (en banc)].

           It is imperative that trial judges use common sense and
     consider the context and surrounding factors in making their
     determinations of whether a violation of a court order is truly
     intentional before imposing sanctions of criminal contempt. As
     we have stated:

        [A] determination of criminal contempt is a criminal
        conviction conferring on the contemnor all the negative
        characteristics of being a convicted criminal. The right to
        be free of the stigma of an unfounded criminal conviction
        is the hallmark of American jurisprudence.

     Baker, 722 A.2d at 722.

           Under the peculiar circumstances of this case, because we
     conclude that the record does not support the determination that
     [Haigh] intended to violate the final PFA order and because the

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      infraction was both de minimis and non-threatening, we are
      constrained to hold that the trial court did abuse its discretion in
      convicting [Haigh] of [ICC].

Haigh, 874 A.2d at 1177-78 (one footnote omitted; emphasis in original).

      The facts of Appellant’s case are distinguishable from the unique

circumstances in Haigh. Appellant was not brought into contact with Reese

in a courtroom setting.    Moreover, unlike in Haigh, nothing in the record

demonstrates that Appellant contacted Reese via Facebook because he

reasonably believed the PFA order was ‘relaxed’ in the context of online

communication. Instead, Appellant testified at the ICC hearing that he sent

the ‘friend request’ because his Facebook account was ‘hacked.’ See N.T. at

26.   The trial court explicitly rejected this testimony, finding it completely

incredible. Id. at 28.

      In sum, the plain language of the PFA order, and the evidence

presented at the ICC hearing, convince us that Appellant understood he was

not permitted to contact Reese via Facebook, yet he willfully chose to violate

the order. While we agree with Appellant that his contact with Reese was de

minimis and non-threatening, we cannot conclude that it was unintentional,

as was the case in Haigh.       Accordingly, the evidence was sufficient to

support Appellant’s conviction of ICC based on his contact with Reese in

October of 2015.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




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