J-S14013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
    BRIAN ELLIOTT, JR.                         :
                                               :
                      Appellant                :       No. 1255 MDA 2016

              Appeal from the Judgment of Sentence June 23, 2016
            In the Court of Common Pleas of Northumberland County
              Criminal Division at No(s): CP-49-MD-0000258-2016


BEFORE:      GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 15, 2017

        Appellant, Brian Elliott, Jr., appeals from the judgment of sentence

entered in the Northumberland County Court of Common Pleas, following his

bench trial conviction for indirect criminal contempt (“ICC”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant and Victim have one child together and were previously in a

relationship. In or around May 2016, Victim sought a protection from abuse

(“PFA”) order against Appellant based on allegations that Appellant was

stalking and harassing her. The court held a PFA hearing on May 25, 2016.

Appellant failed to appear for the hearing. Thus, the court entered a final

PFA order that day stating: “[Appellant] shall not abuse, harass, stalk or
____________________________________________


1
    23 Pa.C.S.A. § 6114(a).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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threaten” Victim. (Final PFA Order, entered May 26, 2016, at 1). The order

also states: “This Order is entered after a hearing at which [Appellant]

was not present, despite proper service being made.”               (Id. at 2)

(emphasis in original).     The order further awarded Victim temporary

exclusive custody of the parties’ child and provided that Appellant shall have

no partial physical custody/visitation rights. (Id.) The PFA order provides a

“NOTICE TO THE DEFENDANT” explaining, inter alia, that a violation of the

PFA order may result in the defendant’s arrest on the charge of indirect

criminal contempt which is punishable by a fine of up to $1,000 and/or a jail

sentence of up to six months. (Id. at 3). The last page of the PFA order

indicates Appellant was served with the order. (Id. at 4).

      On June 10, 2016, while the PFA order was in effect, Victim went

outside her place of employment and saw Appellant walk by her. Appellant

tried to talk to Victim but she went back to work. Later that night, Victim

was at home outside on her porch with her son when she noticed Appellant

walk by her house. Appellant did not make eye contact with Victim. Victim

placed her son in her car and drove away. As Victim approached a stop sign

and began to turn the corner, Appellant appeared from in between other

vehicles, came up to her window, “got in [Victim’s] face” and told Victim that

she was “[g]oing to fuckin’ listen to [Appellant].”      (N.T. ICC Hearing,

6/23/16, at 6). Appellant grabbed Victim through the window and hit her in

the side of the head. Victim sustained numerous bruises from the attack as


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well as a severe concussion. Victim reported the incident to police the next

morning and police subsequently filed a criminal complaint against Appellant

for ICC.

      On June 23, 2016, the court held a hearing on the ICC charge, at

which Victim and Appellant testified. At the conclusion of the hearing, the

court convicted Appellant of ICC and sentenced him to three months’

imprisonment, plus three months’ probation.        The court also extended the

PFA order for an additional six months.      Following sentencing, the court

remarked: “These are some of the most serious injuries I have seen in some

time in a PFA case.” (Id. at 29).

      Appellant filed an untimely post-sentence motion on July 15, 2016,

which the court denied on July 20, 2016. On July 21, 2016, Appellant timely

filed a notice of appeal and a voluntary concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises one issue for our review:

           WHETHER THE VERDICT WENT CONTRARY TO THE
           WEIGHT AND SUFFICIENCY OF THE EVIDENCE WHEN THE
           EVIDENCE AT TRIAL DID NOT MATCH THE ALLEGATION IN
           THE ORIGINAL COMPLAINT AND NO SERVICE OF THE
           ORDER WAS PROVEN BEYOND A REASONABLE DOUBT?

(Appellant’s Brief at 6).

      Our standard and scope of review in this case are as follows:

           When examining a challenge to the sufficiency of the
           evidence:

             The standard we apply…is whether viewing all the

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          evidence admitted at trial 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 and
          inconclusive 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 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.

       This standard is equally applicable in cases where the
       evidence is circumstantial, rather than direct, provided
       that the combination of evidence links the accused to the
       crime beyond a reasonable doubt.

       Additionally, the following principles apply to our review of
       a weight of the evidence claim:

          The weight of the evidence is exclusively for the
          finder of fact who is free to believe all, part, or none
          of the evidence and to determine the credibility of
          the witnesses. An appellate court cannot substitute
          its judgment for that of the finder of fact. Thus, we
          may only reverse the…verdict if it is so contrary to
          the evidence as to shock one’s sense of justice.

       Moreover, where the trial court has ruled on the weight
       claim below, an appellate court’s role is not to consider the
       underlying question of whether the verdict is against the
       weight of the evidence. Rather, appellate review is limited

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           to whether the trial court palpably abused its discretion in
           ruling on the weight claim.

Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),

appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations,

quotation marks, and emphasis omitted).

         Appellant argues he did not receive notice about the PFA hearing until

after the PFA hearing had already occurred.         Appellant asserts he was

unaware of the PFA order. Appellant claims Victim “made up” the June 10,

2016 incident.     Appellant maintains Victim’s statement at the ICC hearing

that Appellant grabbed both of her arms was inconsistent with her prior

statement to police that Appellant grabbed Victim’s throat.           Appellant

contends Victim’s version of events is incredible where no witnesses could

corroborate her testimony even though the incident allegedly occurred in a

busy area with lots of people and a bar around the corner.            Appellant

suggests Victim fabricated the incident to keep Appellant away from his

child.      Appellant concludes the Commonwealth presented insufficient

evidence to sustain the verdict, the verdict was against the weight of the

evidence, and this Court must grant Appellant an arrest of judgment or a

new trial. We disagree.

         As a preliminary matter, generally, a challenge to the weight of the

evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.

The Rule provides:

           Rule 607. Challenges to the Weight of the Evidence

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          (A)   A claim that the verdict was against the weight of
          the evidence shall be raised with the trial judge in a
          motion for a new trial:

                (1) orally,   on    the   record,      at     any   time   before
                sentencing;

                (2)   by written motion at any time before sentencing;
                or

                (3)   in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).        “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004). An appellant’s failure to avail

himself of any of the prescribed methods for presenting a weight of the

evidence issue to the trial court constitutes waiver of that claim, even if the

trial   court    responds     to   the    claim   in    its     Rule   1925(a)      opinion.

Commonwealth v. Burkett, 830 A.2d 1034 (Pa.Super. 2003). See also

Pa.R.Crim.P. 720(A)(1) (explaining written post-sentence motion shall be

filed no later than 10 days after imposition of sentence).

        Instantly, the court sentenced Appellant on June 23, 2016. Appellant

filed an untimely post-sentence motion on July 15, 2016.                     In his post-

sentence motion, Appellant alleged: “[Appellant] requests the court to

reconsider the matter in order to gain a hearing from witnesses on his behalf

and to reduce his sentence to time served or release him from custody

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altogether.” (Post-Sentence Motion, filed 7/15/16, at 1). Notably, the post-

sentence motion did not include a challenge to the weight of the evidence.

The court denied the motion on July 20, 2016.         The record is unclear

whether the court denied Appellant’s post-sentence motion as untimely or

denied it on the merits.   In any event, Appellant’s weight claim is waived

because he failed to preserve it in a timely filed post-sentence motion for a

new trial. See Pa.R.Crim.P. 607; 720; Gillard, supra; Burkett, supra.

      Regarding Appellant’s sufficiency challenge, the ICC statute provides,

in relevant part:

         § 6114.       Contempt     for   violation   of   order   or
         agreement

            (a) General rule.—When the police, sheriff or the
         plaintiff have filed charges of indirect criminal contempt
         against a defendant for violation of a protection order
         issued under this chapter, a foreign protection order or a
         court-approved consent agreement, the court may hold
         the defendant in indirect criminal contempt and punish the
         defendant in accordance with the law.

23 Pa.C.S.A. § 6114(a). This Court has recently explained:

         The purpose of the PFA Act is to protect victims of
         domestic violence from those who perpetrate such abuse,
         with the primary goal of advance prevention of physical
         and sexual abuse. Where a PFA order is involved, an
         indirect criminal contempt charge is designed to seek
         punishment for violation of the protective order. 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. 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

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         constituting the violation must have been volitional; and 4)
         the contemnor must have acted with wrongful intent.

            When reviewing a contempt conviction, much
            reliance is given to the discretion of the trial judge.
            Accordingly, the appellate court is 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. Lambert, 147 A.3d 1221, 1226 (Pa.Super. 2016)

(internal citations, quotation marks, and footnote omitted).

      Instantly, the trial court addressed Appellant’s issue as follows:

         It is clear that, in viewing the evidence in the light most
         favorable to the verdict winner, there was sufficient
         evidence to support this court’s determination. At the
         hearing, the Commonwealth presented evidence from the
         PFA hearing held on May 25, 2016. The Final Protection
         From Abuse Order states [Appellant] failed to appear for
         the May 25th 2016 hearing even though he was “properly
         served.” The Final PFA was granted and became effective
         on May 25, 2016. [Appellant’s] failure to appear does not
         absolve him from complying with the PFA order.

                                  *    *    *

         At the [ICC] hearing, there was testimony by the
         [V]ictim…as to [Appellant’s] actions on June 10, 2016.
         Specifically, on the night of June 10, 2016, [Victim]
         testified [Appellant] reached into her car window and
         grabbed her. He continued to hit her on the side and back
         of the head while her 2 year old son was in the car. This
         court observed the bruises and commented in pronouncing
         sentence: “These are some of the most serious injuries I
         have seen in some time in a PFA case.” … [Victim] further
         testified she subsequently passed out and was hospitalized
         with a severe concussion.

         [Appellant] in his own defense at trial testified that he did
         not receive notice of the PFA hearing and that the incident

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        on June 10, 2016 never occurred.1 This court considered
        and ultimately rejected his testimony.
           1
            [Appellant] admitted he called the courthouse the
           day after the PFA hearing to try to reschedule and
           was told the hearing had already taken place.

(Trial Court Opinion, filed December 1, 2016, at 2-3). We see no reason to

disrupt the court’s decision. See Orr, supra. To the extent Appellant also

complains he did not receive notice of the final PFA order, the record belies

that claim. Therefore, the Commonwealth presented sufficient evidence to

sustain Appellant’s conviction.   See 23 Pa.C.S.A. § 6114(a); Lambert,

supra. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2017




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