J-S09012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ANDREW JAMES PUDUP

                         Appellant                  No. 1235 MDA 2015


            Appeal from the Judgment of Sentence July 2, 2015
              In the Court of Common Pleas of Centre County
            Criminal Division at No(s): CP-14-CR-0001557-2008


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

DISSENTING MEMORANDUM BY LAZARUS, J.:                  FILED MAY 20, 2016

      I respectfully disagree with the majority’s conclusion that the

Commonwealth presented sufficient evidence to support Pudup’s conviction

for indirect criminal contempt.

      A review of the transcript of the July 2, 2015 hearing indicates that no

witnesses were sworn in, no stipulations were offered into evidence and the

court was not asked to take notice of records related to any of the elements

of contempt. Rather, the attorney for the Commonwealth set forth the facts

of the case, and Pudup and his counsel answered some questions about

Pudup’s financial situation, homelessness and his difficulties in finding and

keeping a job. At the conclusion of the proceedings, the transcript of which

consists of 8½ pages, the court found Pudup in indirect criminal contempt,
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and ordered him to pay $300.00 by September 1, 2015, and $50.00 per

month starting in September.

      “It is well settled that attorney’s statements or questions at trial are

not evidence.”    Commonwealth v. Freeman, 827 A.2d 385, 413 (Pa.

2003) (citation omitted). With no evidence, and only inferences to support

the trial court’s verdict, the verdict cannot stand.

      Accordingly, I would remand this matter to the trial court for a

hearing, and direct the court to be mindful of Pa.R.Crim.P. 706, which

provides:

      Rule 706. Fines or Costs

      (A) A court shall not commit the defendant to prison for failure
      to pay a fine or costs unless it appears after hearing that the
      defendant is financially able to pay the fine or costs.

      (B) When the court determines, after hearing, that the
      defendant is without the financial means to pay the fine or costs
      immediately or in a single remittance, the court may provide for
      payment of the fines or costs in such installments and over such
      period of time as it deems to be just and practicable, taking into
      account the financial resources of the defendant and the nature
      of the burden its payments will impose, as set forth in paragraph
      (D) below.

      (C) The court, in determining the amount and method of
      payment of a fine or costs shall, insofar as is just and
      practicable, consider the burden upon the defendant by reason
      of the defendant’s financial means, including the defendant’s
      ability to make restitution or reparations.

      (D) In cases in which the court has ordered payment of a fine or
      costs in installments, the defendant may request a rehearing on
      the payment schedule when the defendant is in default of a
      payment or when the defendant advises the court that such
      default is imminent. At such hearing, the burden shall be on the
      defendant to prove that his or her financial condition has

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     deteriorated to the extent that the defendant is without the
     means to meet the payment schedule. Thereupon the court may
     extend or accelerate the payment schedule or leave it unaltered,
     as the court finds to be just and practicable under the
     circumstances of record. When there has been default and the
     court finds the defendant is not indigent, the court may impose
     imprisonment as provided by law for nonpayment.

Pa.R.Crim.P. 706.




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