J-A05032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER WESTLAKE                       :
                                               :
                       Appellant               :   No. 983 WDA 2018

         Appeal from the Judgment of Sentence Entered June 27, 2018
    In the Court of Common Pleas of Armstrong County Criminal Division at
                       No(s): CP-03-MD-0000049-2018


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                               FILED MARCH 19, 2019

       Christopher Westlake (Appellant) appeals from the judgment of

sentence imposed after the trial court found him guilty of indirect criminal

contempt1 (ICC) for violating a protection from abuse (PFA) order entered on

behalf of Sarah Westlake (Wife). Upon review, we affirm.

       On September 27, 2017, the trial court entered the PFA order, which

“completely evicted and excluded” Appellant “from the residence at 525 North

McKean Street, Kittanning, PA” (the Property). Order, 9/27/17, at 2. The

order remained in effect until March 27, 2019. Id. at 1.

       On January 9, 2018, the Commonwealth filed a criminal complaint

____________________________________________


1  See 23 Pa.C.S.A. § 6114(a) (“Where the police, sheriff or the plaintiff have
filed charges of indirect criminal contempt against a defendant for violation of
a protection order . . . the court may hold the defendant in indirect criminal
contempt and punish the defendant in accordance with law.”).
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alleging that Appellant was in contempt of the PFA order based on an alleged

violation that occurred on December 7, 2017, less than three (3) months after

the order was entered. The complaint stated that Appellant:

     . . . did violate section 2 of the protection from abuse order,
     evicting [Appellant] from the residence of 525 North McKean
     Street, and [Appellant] did enter the residence, according to
     [Wife], alleging that [Appellant] did set off the alarm to the
     residence, canceling the police response, to which [Appellant] was
     on the security protocol list.         [Wife] is also alleging that
     [Appellant], once inside the residence, then changed the master
     code to log into the home[’]s surveillance system, locking [Wife]
     out. All in violation of section 2 of the protection from abuse order
     which states [that Appellant] is evicted from the property, and
     may not enter . . . .

Complaint, 1/9/18.

     The trial court convened a hearing on May 21, 2018.              The court

accurately recounted the evidence presented as follows:

     The Commonwealth presented the testimony of [Wife,] one of the
     parties protected by the PFA Order . . . and Officer Greg Koprivnak
     of the Kittanning Borough Police Department, who investigated
     the incident and filed the ICC complaint on January 9, 2018.

            On September 27, 2017, after hearing at which the parties
     were represented by counsel, the Court entered the PFA Order on
     behalf of Wife and three children . . . (“the Children”). The PFA
     Order was entered by consent without an admission of
     wrongdoing. It provides that [Appellant] shall not “abuse, harass,
     stalk, or threaten” any of the protected parties “in any place where
     they may be found.” It further provides, in relevant part, that
     [Appellant] is “completely evicted and excluded from” the
     residence located at . . . [the Property],

           or any other residence where [Wife] or any other
           person protected under this order may live. Exclusive
           possession of the residence is granted to [Wife].
           [Appellant] shall have no right or privilege to enter or
           be present on the premises of [Wife] or any other

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           person protected by this order.

     (PFA Order, at p. 2, ¶ 2).

            On December 7, 2017, [Appellant] filed a PFA petition
     against Wife on behalf of himself and the Children, which was
     ultimately dismissed. The same day, at some point after 6:00
     p.m., Wife received a phone call from the security company
     associated with the alarm system installed at the [Property],
     where Wife was not living at the time. Although she missed the
     call, Wife called the security company back. Someone from the
     security company then told her that the alarm system had been
     activated. They further advised that, after receiving no response
     from Wife, the company called [Appellant], who was still listed as
     a secondary emergency contact. [Appellant] told the security
     company not to send police and that he would go himself to
     investigate the situation. He further requested that they change
     the security protocol so that he, rather than Wife, would be
     contacted first in the event that the alarm system was tripped
     again. They did not change the security protocol. Wife then called
     [Appellant], who told her that he had been at the [Property] to
     check it, but did not go in and was not the one who set off the
     alarm. [Appellant] asked Wife if he could go into the residence,
     and she declined.

           Wife went to the [Property] the next day to check the
     security cameras, but discovered that her code no longer worked.
     The only person who can change login access to the camera
     system is the person with the administrator password, who is
     [Appellant]. As of the date of the hearing, Wife still was not able
     to access the security camera footage for this reason. Given that
     information, Wife assumed that [Appellant] had been on the
     [P]roperty, so she reported the incident to the Kittanning Borough
     Police. Prior to December 7, 2017, Wife had contacted the
     security company and changed the security system access code,
     of which change [Appellant] was not aware. Wife did not see
     [Appellant] at the [P]roperty. Her legal residence on the day of
     the violation was [a different address in] Kittanning, Pennsylvania.

           Officer Koprivnak testified that Wife contacted him on
     December 11, 2017, to report what she believed was a violation
     of the PFA Order. Wife told Officer Koprivnak that she did not see
     [Appellant] at [the Property], but that the security company had
     contacted her to advise that the alarm had been activated. Wife

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       then relayed to [O]fficer Koprivnak her conversation with the
       security company. Officer Koprivnak then contacted the security
       company himself. The company advised that they talked with
       [Appellant], who told them to contact him first if there were any
       further alarm activations. Officer Koprivnak did not go to [the
       Property] to investigate. He contacted [Appellant] on December
       12, 2017. [Appellant] advised that only he and Wife had access
       codes to the video surveillance system. [Appellant] denied
       changing the code and being at the [P]roperty.

             Officer Koprivnak filed the ICC complaint on January 9,
       2018. The hearing initially was scheduled for January 29, 2018,
       at which hearing [Appellant] appeared and requested a
       continuance because he had not been served with the complaint.
       The Court granted the continuance and continued the hearing to
       March 26, 2018. On that date, [Appellant] appeared pro se and
       requested a continuance in order to secure counsel, which the
       Court granted. The Court continued the hearing to May 21, 2018,
       advising [Appellant] in the order that no further continuances
       would be granted for any reason. [Appellant] appeared pro se on
       May 21, 2018. Before the beginning of testimony, the Court asked
       [Appellant] if he had legal counsel, to which [Appellant] replied
       that he did not. The Court then asked [Appellant] if he was
       representing himself, and [Appellant] responded, “yes.” [N.T.
       Contempt Hearing, 5/21/18, at 3.]

             [Appellant] did not testify at the hearing. . . .

Trial Court Opinion, 8/15/18, at 1-4 (footnote omitted).

       At the conclusion of the hearing, the trial court convicted Appellant of

ICC.   The court deferred sentencing to June 27, 2018, when it sentenced

Appellant to six (6) months of confinement, with eligibility for electric home

monitoring after 90 days. Appellant subsequently obtained counsel, who both

entered his appearance on behalf of Appellant and filed this timely appeal on

July 6, 2018.      Both Appellant and the trial court have complied with

Pennsylvania Rule of Appellate Procedure 1925.


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      Appellant presents four issues for our review:

      I.    Whether there was insufficient evidence to establish wrongful
            intent on the part of [Appellant]?

      II.   Whether the trial court erred in failing to adequately colloquy
            [Appellant], where [Appellant] had the right to counsel at his
            indirect criminal contempt hearing and [Appellant] did not
            knowingly and intelligently waive his right to counsel?

      III. Whether the trial court erred in finding against [Appellant] on
           the basis that [Appellant] failed to testify and refute the
           testimony of his wife in violation of [Appellant’s] federal and
           state constitutional right against self-incrimination and
           violated his federal and state due process rights?

      IV. Whether [Appellant’s] due process rights were violated and
          insufficient evidence was introduced where the evidence
          necessary to establish that [Appellant] was purportedly at the
          property was solely based on hearsay?

Appellant’s Brief at 4.

      For ease of analysis, we address Appellant’s issues out of order.

Because the right to counsel in a criminal contempt proceeding is a

constitutional right, we begin with Appellant’s second issue, in which he claims

that he was denied the right to counsel where “the trial court engaged in no

colloquy, [such that] there could be no valid waiver.” See Appellant’s Brief at

22; see also Commonwealth v. McDonough, 812 A.2d 504, 506 (Pa. 2002)

(“The right to counsel in a criminal proceeding is a fundamental right

guaranteed by the Sixth Amendment of the United States Constitution and

Article One, Section Nine of the Pennsylvania Constitution.”).         Appellant

contends that the trial court erred by failing to conduct a proper waiver-of-

counsel colloquy.         Id. at 18-19, citing Pa.R.Crim.P. 121(A)(2)(a)-(f)

                                       -5-
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(defendant understands that he has the right to be represented by counsel,

understands the nature of the charges, etc.); Commonwealth v. Phillips,

93 A.3d 847, 855 (Pa. Super. 2014) (trial court’s failure to comply with Rule

121 at each of three waiver-colloquies was error).

      In rebutting this argument, the Commonwealth emphasizes that “the

totality of the circumstances must be reviewed[, where Appellant] previously

requested a continuance to secure counsel, then showed up to the hearing

without counsel and told the trial court he was ready to proceed.”

Commonwealth Brief at 4.

      It is undisputed that Appellant was entitled to counsel at the contempt

hearing.   See 23 Pa.C.S.A. § 6114(b)(3) (“defendant shall be entitled to

counsel” “on a charge of indirect criminal contempt”); Commonwealth v.

Crawford, 352 A.2d 52, 54 (Pa. 1976) (summary conviction for contempt of

court of a witness who was not represented by counsel cannot stand),

disapproved on other grounds, Commonwealth v. Moody, 125 A.3d 1, 15

(Pa. 2015).   However, upon review — and contrary to Appellant’s lack of

waiver argument — it is apparent that Appellant forfeited his right to counsel.

      In Commonwealth v. Lucarelli, 971 A.2d 1173 (Pa. 2009), the

Supreme Court clarified that the rule governing waiver of the right to counsel

and its colloquy requirements does not apply to situations where a defendant

has forfeited his right to counsel. The Supreme Court stated, “[D]efendants

have been held to have forfeited the right to counsel where they have either


                                     -6-
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engaged in physically abusive and threatening conduct, or have engaged in

dilatory conduct.” Id. at 1180 (emphasis added). Although neither party

nor the trial court in this case has used the word “forfeiture” in addressing

Appellant’s claim, it is clear that the term applies to this case and in the

context of Appellant’s pro se status at the contempt hearing. The trial court

explained:

      [Appellant] contends that the Court erred in failing to adequately
      colloquy him to determine whether his decision to proceed pro se
      was made knowingly and intelligently.             [Appellant] was
      represented by counsel at the PFA hearing in September 2017. At
      the second date and time scheduled for the ICC hearing, March
      26, 2018, [Appellant] requested a continuance to secure counsel,
      which continuance the Court granted over the Commonwealth’s
      objection. Approximately two months later, on May 21, 2018,
      [Appellant] again appeared without counsel. The Court inquired
      of [Appellant] whether he intended to proceed pro se, which he
      indicated that he was. There is no indication anywhere in the
      record that [Appellant] was unaware that he was entitled to
      counsel at the hearing, and the Court gave [Appellant], who is not
      indigent, every opportunity to secure counsel.

Trial Court Opinion, 8/15/18, at 9.

      Consistent with the above facts, the Supreme Court has held that

“where a defendant’s course of conduct demonstrates his or her intention not

to seek representation by private counsel, despite having the opportunity and

financial wherewithal to do so, a determination that the defendant be required

to proceed pro se is mandated because that defendant has forfeited the right

to counsel.” See Luccarelli, 971 A.2d at 1179. Accordingly, Appellant’s right

to counsel claim lacks merit.

      Next, we address Appellant’s first and fourth issues, in which Appellant


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challenges the sufficiency of the evidence, claiming: 1) there was insufficient

evidence of Appellant’s “wrongful intent”; and 2) there was insufficient

evidence that Appellant was at the Property because the necessary evidence

was based on hearsay. See Appellant’s Brief at 10.

             We review a contempt conviction for an abuse of discretion.
      Commonwealth v. Haigh, 874 A.2d 1174, 1177 (Pa. Super.
      2005). We rely on the discretion of the trial court judge and are
      confined to a determination of whether the facts support the trial
      court’s decision. Id. at 1176–77. In reviewing whether the
      evidence was sufficient to support the conviction, “we must
      determine whether the evidence admitted at trial, and all
      reasonable inferences drawn from that evidence, when viewed in
      the light most favorable to the Commonwealth as verdict winner,
      was sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt.” Commonwealth v. Taylor, 137
      A.3d 611, 614 (Pa. Super. 2016) (en banc) (citation and quotation
      omitted). In applying the above test, “we may not weigh the
      evidence and substitute our judgment for the fact-finder.”
      Commonwealth v. Brumbaugh, 932 A.2d 108, 109 (Pa. Super.
      2007) (citation and quotation omitted). 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.” Id. at 110.

             This Court has repeatedly stated that “[t]he 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.” Commonwealth v.
      Lambert, 147 A.3d 1221, 1226 (Pa. Super. 2016) (citation and
      quotation omitted). “Where a PFA order is involved, an indirect
      criminal contempt charge is designed to seek punishment for
      violation of the protective order.” Commonwealth v. Jackson,
      10 A.3d 341, 346 (Pa. Super. 2010) (citation and quotation
      omitted). A charge of indirect criminal contempt consists of a
      claim that a violation of an order occurred outside the presence of
      the court. Lambert, supra at 1226.

          In order to establish indirect criminal contempt, the
      Commonwealth must prove: “1) the order was sufficiently


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        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.” Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa.
        Super. 2012) (citation and quotation omitted).

Commonwealth v. Felder, 176 A.3d 331, 333–34 (Pa. Super. 2017).

Additionally, “[t]he Commonwealth may sustain its burden by means of wholly

circumstantial evidence.” Taylor, 137 A.3d at 614.

        With regard to wrongful intent, we recognize that “[w]rongful intent can

be imputed by virtue of the substantial certainty that [one’s actions will be] .

. . in violation of the PFA Order,” and “judges should use common sense and

consider context and surrounding factors in making [a] determination as to

whether [a] violation of a PFA is truly intentional.” Lambert, 147 A.3d at

1227.

        Appellant asserts that there was no evidence of his wrongful intent when

he “purportedly went to the residence,” because Wife “admittedly no longer

used or resided at the property and was not present.” Appellant’s Brief at 13.

The Commonwealth counters that “a clear intent to violate was present

through [Appellant’s] own statement that he went to the Property, an act that

was prohibited by the PFA Order.” Commonwealth Brief at 9. The trial court

explained:

               [Appellant] first contends that the evidence presented was
        insufficient to establish his wrongful intent in entering onto the
        Property. The Court disagrees. This is not a case where there is
        evidence that the defendant did not intend to violate the order,
        committed a de minimis infraction, or engaged exclusively in non

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      threatening conduct. See [Haigh, 874 A.2d 1174]. Rather, the
      evidence establishes that [Appellant] went to the Property, was
      unaware that his access code for the security system had been
      changed, and, after he entered and tripped the alarm, attempted
      to change the security protocol so that neither Wife nor law
      enforcement would discover his presence. There also is evidence
      that [Appellant] attempted to prevent access to the security
      cameras that otherwise would have confirmed his presence on the
      Property. Finally, there is no evidence that [Appellant] was at the
      time aware that Wife was not present and was not residing at the
      Property. Thus, considering all of the evidence together, the Court
      was free to and did infer [Appellant’s] wrongful intent to violate
      the PFA Order.

Trial Court Opinion, 8/15/18, at 6-7.

      Wife’s testimony supports the trial court’s inference of Appellant’s

wrongful intent. Wife testified that she “had changed the code to the alarm

system, not the camera system, which I’m sure surprised [Appellant].” N.T.,

5/21/18, at 8. Wife further stated:

      I was going to check the cameras to see if [Appellant] was telling
      the truth and I was now locked out of my user name, and the only
      person who can do that is the one who has the administrator
      password, which is [Appellant].

Id. at 5. Wife explained that when she could not access the security system,

she “assumed that [Appellant] had been on the [P]roperty and that he

changed the code, so I called the state — the Kittanning Police and reported

it.” Id. at 6. Wife clarified that Appellant “had to have entered the house in

order to access the cameras, and there is no way he could have done it

otherwise.” Id. She explained:

      The security system and the cameras are on separate systems.
      Because of the PFA, my security company allowed me to change
      the alarm code since [Appellant] was no longer allowed on the

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      [P]roperty and [Appellant] was unaware of [the alarm code
      change], so whenever he was going into the house he incidentally
      set the alarm off.

Id. When asked about her access to the security videos, Wife testified that

she could not access the videos, but if Appellant would “unlock” them, and

“he’s telling the truth, [then] it would corroborate his story, but . . . ” Id.

Wife explained that she and Appellant had bought and installed the cameras,

“so there is really no one that would have any way to clear it off otherwise or

allow me to access that. Like I said, he’s the only one that can access it.” Id.

at 7, 14. This testimony, as well as the record as a whole, supports the trial

court’s determination that Appellant acted with wrongful intent in violating the

PFA order.

      Appellant also argues that the evidence was insufficient to establish ICC

– and his due process rights were violated – because the Commonwealth’s

evidence improperly consisted “solely of hearsay evidence.” Appellant’s Brief

at 26. Appellant references Wife’s testimony that the security company told

her the alarm was triggered, that it contacted Appellant, and that Appellant

told the security company not to send police and that he would check the

home. Appellant further points to Wife’s “hearsay testimony that [Appellant]

told her that he was at the property,” as well as Officer Koprivnak’s testimony

about what Wife reported to him. Id. at 27-28. The essence of Appellant’s

argument is that without hearsay evidence, regardless of whether it was




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admissible, “there is no evidence that [Appellant] was ever at the home.” 2 Id.

at 29. Appellant relies on Commonwealth ex rel. Buchanan v. Verbonitz,

581 A.2d 172 (Pa. 1990) (plurality), which he acknowledges held “that

reliance of hearsay alone at a preliminary hearing violated state

constitutional norms.” Appellant’s Brief at 25 (emphasis added). Appellant

also refers to this Court’s decision in Commonwealth v. Ricker, 120 A.3d

349 (Pa. Super. 2015), appeal dismissed as improvidently granted, 170 A.3d

494 (Pa. 2017).3

       The Commonwealth responds that the trial court properly found there

to be sufficient circumstantial evidence that Appellant was at the Property,

namely Wife’s testimony that she was unable to view the security camera

footage because the access code was changed, and that the code “could only

be changed by entering the Property and changing it while inside.”



____________________________________________


2 Appellant acknowledges that he did not object to the hearsay testimony at
the contempt hearing, but now argues “this makes it all the more relevant
that he did not voluntarily, knowingly, and intelligently waive his right to
counsel.” Appellant’s Brief at 27 n.2. While we have already disposed of
Appellant’s right to counsel claim, we further reject his inference that a pro se
defendant’s failure to object is relevant to the question of whether Appellant
was denied his right to counsel. See Commonwealth v. Ray, 134 A.3d 1109,
1115 (Pa. Super. 2016) (pro se defendant “assumes the risk that his lack of
legal training will place him at a disadvantage”).

3 Appellant also cites the dissenting opinion in the Supreme Court in the
Ricker case. Appellant’s Brief at 26, citing Ricker, 170 A.3d at 507-520
(Wecht, J., dissenting). Appellant disregards the fact that the majority of the
Supreme Court dismissed the appeal in Ricker as improvidently granted, and
thus the dissent’s analysis has no precedential value.

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Commonwealth Brief at 18.

      We first recognize that, as Appellant acknowledges, Verbonitz

addressed the burden of proof at a preliminary hearing. See Verbonitz, 581

A.2d at 175      (“[T]he   Pennsylvania    Constitution mandates a criminal

defendant’s right to confrontation and cross-examination at the preliminary

hearing.”). In Ricker, this Court considered Verbonitz and concluded “that

an accused does not have the right to confront the witnesses against him at

his preliminary hearing under” the United States and Pennsylvania

confrontation clauses. Ricker, 120 A.3d at 362. In any event, after granting

allowance   of   appeal,   our   Supreme       Court   dismissed   the   appeal   as

improvidently granted, following its determination that “the Commonwealth

introduced some non-hearsay evidence at [the] preliminary hearing.” See

Ricker, 170 A.3d at 507 (Wecht, J., dissenting). Instantly, we distinguish

both Verbonitz and Ricker because in this case, Appellant’s issue relates to

the contempt hearing – the guilt-phase of his ICC charge – and not a

preliminary hearing as specifically contemplated in Verbonitz and Ricker.

      Moreover, we agree with the trial court and the Commonwealth that the

Commonwealth presented sufficient non-hearsay, circumstantial evidence

that Appellant was at the Property in violation of the PFA. See Taylor, 137

A.3d at 614 (“The Commonwealth may sustain its burden by means of wholly

circumstantial evidence.”). In its opinion, the trial court cited Wife’s testimony

that the day after the alarm system was activated, she went to the Property


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and attempted to check the security camera’s footage, but her access “code

no longer worked,” and the only person who could have changed the code was

“the person with the administrator password, who” was Appellant. Trial Court

Opinion, 8/15/18, at 3. Wife further explained that Appellant “had to have

entered the house in order access the cameras, and there is no way he could

have done it otherwise.” N.T., 5/21/18, at 6; see also id. at 40-41 (trial

court    finding   Appellant   guilty   based    on   undisputed   testimony   and

“circumstantial evidence establishing” violation of PFA order); Trial Court

Opinion, 8/15/18, at 10 (unrefuted testimony of Wife “considered with the

other circumstantial evidence, was sufficient to support the Court’s finding of

indirect criminal contempt”).       This evidence, which Appellant does not

acknowledge or address on appeal, refutes his contention that he was

convicted of ICC solely on hearsay evidence.           Appellant’s claim of a due

process violation is thus meritless, as is his overall contention that there was

insufficient evidence to support his conviction.

        Finally, we address Appellant’s third issue, in which he claims that the

trial court violated his right against self-incrimination, and “in finding [him]

guilty, held it against him that he did not testify and dispute that he was on

the property.” Appellant’s Brief at 23. In support, Appellant cites the court’s

statement at the contempt hearing: “[I]t’s undisputed that you are accused

of saying, I’m on the property. You never disputed that. You never said it’s

not so.” Id. Appellant reasons that the only way he could have disputed


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Wife’s testimony was to testify. Appellant also challenges the court’s “belated”

and unsupported statement in its opinion that it placed no burden on him to

testify, as “it is evident from the record that the court did find it material” that

he did not testify. Id. at 23-24.

      This Court has stated:

      “It is well settled that the Fifth Amendment, made applicable to
      the states through the Fourteenth Amendment, forbids either
      comment by the prosecution on the accused’s silence at trial or
      instructions by the court that such is evidence of guilt.” This Court
      has long recognized the principle ‘that the prosecutor’s remarks
      to the jury should not contain any adverse reference to the failure
      of [an accused] to offer himself as a witness in the event that he
      does not testify on his own behalf.’” . . . However, “[s]uch
      comments are improper [only] if they unequivocally call attention
      to the defendant’s failure to testify.” Therefore, “while it is
      improper for a prosecuting attorney to refer to a defendant’s
      failure to testify, it is not improper for the prosecutor to identify
      for the jury items of evidence which have been uncontradicted.”

Commonwealth v. Ulen, 607 A.2d 779, 790 (Pa. Super. 1992) (citations

omitted).

      We set forth below the trial court’s statements cited by Appellant. In

rendering its guilty verdict at the conclusion of the contempt hearing, the court

addressed Appellant:

      [B]ased upon the evidence before the Court, and in that evidence
      it’s undisputed that you are accused of saying, I’m on the
      property. You never disputed that. You never said it’s not so. So
      the undisputed testimony before the Court is your own admission
      that you violated the protection from abuse order. In addition,
      there is circumstantial evidence establishing the same.

N.T., 5/21/18, at 40-41 (emphasis added). In its Rule 1925(a) opinion, the

court expanded:

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      [Appellant] misconstrues the Court’s findings at the end of the
      hearing, wherein the Court found that Wife testified that
      [Appellant] stated he was on the Property. That testimony, which
      contained [Appellant’s] admission, was not refuted by [Appellant],
      who did not testify. The Court did not treat [Appellant’s] silence
      or refusal to testify as an “admission” of guilt. Rather, the Court
      considered and credited the unrefuted testimony from Wife that
      [Appellant] admitted to her that he was on the Property and
      further asked if he could enter the residence. The Court placed
      no burden on [Appellant] to testify and did not infer from his
      silence that he admitted guilt. The Court merely credited the
      unrefuted testimony presented, which contained certain
      admissions from [Appellant] that, considered with the other
      circumstantial evidence, was sufficient to support the Court’s
      finding of indirect criminal contempt beyond a reasonable doubt.

Trial Court Opinion, 8/15/18, at 10.

      Although the Ulen case cited above addressed the propriety of a

prosecutor’s remarks to a jury in referencing a defendant’s decision not to

testify at trial, it is instructive to our review. Here, the trial court explained

that it did not construe Appellant’s decision not to testify as an inference of

guilt, but rather, credited Wife’s testimony about what Appellant told her. As

noted, Appellant represented himself at the contempt hearing.             During

Appellant’s cross-examination of Wife, the following exchanges occurred

between the parties:

      [APPELLANT]:       Okay. Did you contact the Defendant during the
                         alleged incident?

      [WIFE]:            Yes, after I had spoke[n] to the security
                         company.

      [APPELLANT]:       And what did he say?

      [WIFE]:            I asked if you had entered the property and
                         you said yes, or I asked if you had been on

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                      the property and you said yes.

     [APPELLANT]:     Okay. You gave no other directions?

     [WIFE]:          I said, do not go into the house. You had asked
                      and I said no.

     [APPELLANT]:     What is your sister’s place of employment? . . .

N.T., 5/21/18, at 11-12 (emphasis added).

     Further:

     [APPELLANT]:     You state that the security system contacted me?

     [WIFE]:          Correct.

     [APPELLANT]:     Why was I left on the protocol? Why was the
                      Defendant left on the protocol?

     [WIFE]:          They had contacted me and I didn’t answer and
                      they had left your name on there inadvertently.
                      I never changed it. Oversight on my part.

     [APPELLANT]:     So your statement is they contacted me
                      inadvertently?

     [WIFE]:          Excuse me?

     [APPELLANT]:     You are stating that they contacted me in
                      advertently?

     [WIFE]:          Yes. I inadvertently left you on there as a
                      contact.

     [APPELLANT]:     You made a statement that you assumed I was
                      at the residence.

     [WIFE]:          There is no assumption.       You stated you
                      were.

     [APPPELLANT]:    You also stated that there was a hot water tank
                      missing? . . .

N.T., 5/21/18, at 12-13 (emphasis added).



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J-A05032-19


      As noted in Ulen, it is not improper for a prosecutor to point to “items

of evidence which have been uncontradicted.” See Ulen, 607 A.2d at 790.

Likewise, the trial court in this case cited — in addition to circumstantial

evidence — Wife’s uncontradicted testimony that Appellant told her he was at

the Property. We find no merit to Appellant’s claim regarding his decision not

to testify at the contempt hearing.

      For the above reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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