J-A14007-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA

                         Appellee



THERESA MARIE ULEN

                         Appellant                     No. 1703 MDA 2015


         Appeal from the Judgment of Sentence September 8, 2015
           In the Court of Common Pleas of Cumberland County
            Criminal Division at No(s): CP-21-CR-0000307-2015




BEFORE: BOWES, OTT AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                 FILED JULY 21, 2016

      Theresa Marie Ulen appeals from the judgment of sentence of six

months probation imposed by the trial court after it convicted her of indirect

criminal contempt. We affirm.

      On July 24, 2013, Renee Butts obtained a Protection from Abuse

(“PFA”) order against Appellant, her mother. That order prohibited Appellant

from directly or indirectly contacting Ms. Butts or her immediate family.

Appellant was additionally forbidden from abusing, harassing, stalking, or

threatening any of the protected persons in any place where they might be

found,   and   specifically,   to    “stay   away   from”   their   residence   in

Mechanicsburg, Pennsylvania. PFA Order, 7/24/13, at ¶ 2.


* Retired Senior Judge assigned to the Superior Court.
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      During the afternoon on February 9, 2015, Ms. Butts observed a gold

Ford Focus, which she recognized was Appellant’s vehicle, driving slowly

down Hunt Place, a street which can be seen from the rear of her house.

Although the vehicle was the same color and model as the car owned by

Appellant, Ms. Butts could not identify its occupants.       Nevertheless, Ms.

Butts was aware that none of her neighbors owned a car of that make,

model, or color.   Shortly thereafter, Ms. Butts drove to the entrance of her

housing development to pick up her son from his bus stop. She noticed the

gold Ford Focus stopped opposite the school bus.      As her son approached

her car, and the bus departed, Ms. Butts watched the Ford Focus continue

slowly down Mulberry Drive.    Ms. Butts saw her father driving the vehicle

while Appellant was sitting in the passenger seat.         Both individuals had

turned to watch Ms. Butts’s son exit the bus.     She immediately contacted

police.

      Based on Ms. Butts’s testimony, the trial court convicted Appellant of

indirect criminal contempt.   The court sentenced Appellant to six months

probation, costs, and a $300 fine. Appellant timely appealed, and the court

directed her to file and serve a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Appellant complied, and the court authored

its Pa.R.A.P. 1925(a) opinion. The matter is now ready for our review.

      Appellant raises two issues for our consideration:




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       I.   Was there insufficient evidence to support a finding of
            indirect criminal contempt as the order was not definite,
            clear, and specific such that there was no doubt or
            uncertainty in the mind of Appellant of the conduct
            prohibited?

      II.   Was there insufficient evidence to support a finding of
            indirect criminal contempt as the act constituting the
            violation was neither volitional nor committed with wrongful
            intent?

Appellant’s brief at 5.

      In analyzing a sufficiency challenge, we must determine “whether,

viewing all the evidence admitted at trial in the light most favorable to the

verdict winner, there is sufficient evidence to enable a fact-finder to find

every element of the crime beyond a reasonable doubt.” Commonwealth

v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015) (citations omitted). “In

applying the above test, we may not weigh the evidence and substitute our

judgment for that of the fact-finder. Id. In addition, the evidence “need not

preclude every possibility of innocence.” Id. The Commonwealth may meet

its burden by wholly circumstantial evidence and “any doubt 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.”       Id.   Moreover, “in applying

the above test, the entire record must be evaluated and all evidence actually

received must be considered.” Id. Finally, “the trier of fact while passing




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upon the credibility of witnesses and the weight of the evidence produced, is

free to believe all, part or none of the evidence.” Id.

      The Protection from Abuse Act permits a court to punish and hold in

indirect criminal contempt a defendant who violates a PFA order. 23 Pa.C.S.

§ 6114(a). 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 constituting the violation must have been

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

Commonwealth v. Walsh, 36 A.3d 613, 618 (Pa.Super. 2012) (citation

omitted).

      Appellant first contends that the language contained in the PFA order

was not definite, clear, or specific enough so that no uncertainty could exist

as to what conduct was prohibited. Appellant’s brief at 10. This argument

challenges the first element of the offense. Appellant asserts the phrase “to

stay away from [Ms. Butts’s residence],” was not sufficiently defined, and

thus, Appellant could not know how far from the subject property she had to

remain. Id. We disagree.

      The terms of the PFA order, beyond the phrase emphasized by

Appellant, clearly delineate the conduct prohibited therein. Pursuant to the

terms of the PFA order, Appellant was not allowed to “abuse, stalk, harass,

threaten or attempt to use physical force,” on Ms. Butts, her husband, or her

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children, “in any place they might be found.” PFA Order, 7/24/13, at ¶ 1.

Appellant was also forbidden from having “ANY CONTACT with [the protected

persons] either directly or indirectly . . . at any location . . . [and] is

specifically ordered to stay away from [Ms. Butts’s residence].” Id. at ¶ 2

(emphasis original).

      The language highlighted by Appellant does not encompass the

entirety of the prohibition affecting Appellant’s conduct. Although Appellant

is specifically barred from Ms. Butts’s residence, she is generally restricted

from contacting the persons protected under the PFA order “in any place

they might be found,” or having “any contact” at “any location.” Id. at ¶¶ 1

and 2. Appellant’s contention that the PFA order requires some measure of

distance to render it unambiguous misses the mark since, when read

together, the terms of the PFA order specifically outline that Appellant is not

to be in any location where the protected persons reasonably might be

found.

      Instantly, the Commonwealth offered the PFA order into evidence.

Given the clear language limiting Appellant’s behavior, the Commonwealth

presented sufficient evidence to prove that the terms of the PFA order were

definite, clear, and specific as to leave no doubt in Appellant’s mind as to

what conduct was prohibited. Therefore, Appellant’s assertion fails.

      Appellant next assails the sufficiency of the Commonwealth’s evidence

that she acted volitionally or with wrongful intent. Appellant’s brief at 12.

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She first avers that, as Ms. Butts was unable to identify the occupants of the

vehicle on Hunt Place, the Commonwealth failed to prove that Appellant’s

actions in this regard were volitional. Id. In the second instance, Appellant

argues that, since she was merely a passenger when her husband drove

passed the bus stop, it could not be proven that she wrongfully intended to

be present at that place and at that time. Id. at 12-13.

      Here, Ms. Butts testified that one hour after she observed a suspicious

vehicle matching the make, model, and color of Appellant’s car driving in her

two-street neighborhood, she identified Appellant in that vehicle near her

son’s bus stop. Cognizant that no other resident in the small development

owned a gold Ford Focus, sufficient circumstantial evidence established that

Appellant was in the car when it was first observed on Hunt Place.

      Similarly, the fact that Appellant was not the driver of the car during

either of the two encounters is of no moment, as the terms of the PFA order

proscribe Appellant from directly or indirectly, i.e., through a third party,

making contact with the protected individuals. Appellant and her husband

intentionally entered the residential development, either waited or returned

one hour later, and surveilled her son as he alighted his school bus. When

viewed in the light most favorable to the Commonwealth, the evidence

adduced at trial established beyond a reasonable doubt that Appellant

intentionally and willfully embarked on a course of conduct that violated the

terms of the PFA order.

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     Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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