J-S69001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KENNETH R. JACKSON

                            Appellant                 No. 176 EDA 2013


            Appeal from the Judgment of Sentence January 7, 2013
                 In the Municipal Court of Philadelphia County
             Criminal Division at No(s): MC-51-MD-0000109-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED DECEMBER 11, 2014

       Appellant, Kenneth R. Jackson, appeals from the judgment of sentence

entered in the Philadelphia County Municipal Court, following his conviction

for the summary offense of criminal contempt at 42 Pa.C.S.A. § 4132.1 We

reverse.

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

On January 7, 2013, the Commonwealth moved for a finding of contempt

against Appellant, because he failed to appear on two prior court dates.

That same day, the Municipal Court conducted a hearing on the matter.
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1
  A defendant can appeal from a Municipal Court contempt order directly to
this Court as of matter of right. See 42 Pa.C.S.A. § 1123(a.1) (stating
“There shall be a right to appeal to the Superior Court of a contempt citation
issued by a municipal court judge, but the appeal shall be limited to a review
of the record”).
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Immediately following the hearing, the court convicted Appellant of

summary contempt, pursuant to Section 4132(2).2 The court also sentenced

Appellant to five (5) to ten (10) days’ imprisonment, with immediate parole

after five (5) days.

       Appellant timely filed a notice of appeal on January 9, 2013. On May

8, 2014, the court ordered Appellant to file a concise statement of errors

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

filed a Rule 1925(b) statement on May 15, 2014.

       Appellant now raises two issues for our review:

          WHETHER THE TRIAL COURT ERRED IN FINDING
          APPELLANT   IN  CONTEMPT  WHERE   THERE  WAS
          INSUFFICIENT EVIDENCE OF RECORD TO ESTABLISH
          THAT APPELLANT WILLFULLY FAILED TO APPEAR IN
          COURT.

          WHETHER THE TRIAL COURT ERRED IN OPINING THAT
          APPELLANT FAILED TO PRESERVE ISSUES RAISED ON
          APPEAL.

(Appellant’s Brief at 4).
____________________________________________


2
  “Direct contempt is obstruction by conduct, word or deed in the presence
of the court and is a summary offense.” Commonwealth v. Brown, 622
A.2d 946, 948 (Pa.Super. 1993). “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.” Commonwealth v. Haigh, 874
A.2d 1174, 1176 (Pa.Super. 2005), appeal denied, 585 Pa. 686, 887 A.2d
1240 (2005) (emphasis in original). Here, the court did not announce
whether it had found Appellant in direct or indirect criminal contempt. We
note, however, this Court has held that the failure to appear in court, as
required by previous court proceedings, can be considered an act of direct
criminal contempt. See Commonwealth v. Edwards, 703 A.2d 1058
(Pa.Super. 1997).



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     “[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 decision.”

Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa.Super. 2002)

(quoting Williams v. Williams, 681 A.2d 181, 183 (Pa.Super. 1996), aff’d,

554 Pa. 465, 721 A.2d 1072 (1998)).         “We will reverse a trial court’s

determination only when there has been a plain abuse of discretion.”

Kolansky, supra at 939. “An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Griffiths, 15 A.3d 73, 76 (Pa.Super. 2010) (quoting

Commonwealth v. Dent, 837 A.2d 571, 577 (Pa.Super. 2003), appeal

denied, 581 Pa. 671, 863 A.2d 1143 (2004)).

     On appeal, Appellant acknowledges the court based its contempt

finding on Section 4132(2), which punishes disobedience or neglect by a

party to the lawful process of the court.    To warrant a contempt finding

under Section 4132(2), Appellant contends the evidence must establish his

failure to appear and the court’s issuance of an order mandating his

appearance. Appellant insists the evidence from the contempt hearing did

not establish the issuance of an order commanding his appearance. To the

extent the Commonwealth submitted certain police records memorializing


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Appellant’s failure to appear, Appellant “fails to see how a police report could

possibly serve to establish a lawfully issued process of the court….”

(Appellant’s Brief at 9). Absent more, Appellant insists there is no proof of a

willful failure to appear for the court proceedings at issue.         Appellant

concludes the evidence was insufficient to support the contempt conviction. 3

We agree.

       When examining a challenge to the sufficiency of the evidence, our

standard of review is:

          [W]hether viewing all the 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
____________________________________________


3
  Although the court opined that Appellant failed to preserve his claim
regarding the sufficiency of the evidence, the record belies the court’s
opinion.   Specifically, Appellant raised the claim in his Rule 1925(b)
statement. On this record, Appellant preserved his claim for appellate
review. See Commonwealth v. McCurdy, 943 A.2d 299 (Pa.Super. 2008)
(explaining Pa.R.Crim.P. 606(A)(7) expressly allows challenge to sufficiency
of evidence made on appeal).



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         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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

      A court’s power to impose a summary punishment for contempt is set

forth in Section 4132 as follows:

         § 4132. Attachment and summary punishment for
             contempts

            The power of the several courts of this Commonwealth
         to issue attachments and to impose summary punishments
         for contempts of court shall be restricted to the following
         cases:

                  (1) The official misconduct of the officers of
            such courts respectively.

                  (2) Disobedience or neglect by officers,
            parties, jurors or witnesses of or to the lawful
            process of the court.

                 (3) The misbehavior of any person in the
            presence of the court, thereby obstructing the
            administration of justice.

42 Pa.C.S.A. § 4132 (emphasis added).

      A finding of contempt pursuant to Section 4132(2) must be supported

by the following 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;


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           (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.

           Further, unless the evidence establishes an intentional
           disobedience or an intentional neglect of the lawful process
           of the court, no contempt has been proven. Moreover, a
           conviction for criminal contempt requires proof beyond a
           reasonable doubt.

In re C.W., 960 A.2d 458, 467 (Pa.Super. 2008) (quoting Kolansky, supra

at 940).

       Instantly, the contempt hearing consisted of the following exchange

between the parties:

           [COMMONWEALTH]:            Commonwealth     asks      for
           contempt. Commonwealth marks as C-1 the arrest files
           showing FTA 1/5/10 as well as a prior FTA, asks that C-1
           be moved into evidence.[4]

           [DEFENSE COUNSEL]:         Judge, this is a ten-year-old
           case and my client tells me that he had gone to traffic
           court and received his car back and was understanding the
           whole thing (inaudible―due to static). It was not a willful
           failure to appear.

           I asked that you not hold him in contempt.

           THE COURT:                 All right.     I find him in
           contempt. He’s in for a five or ten day period. Parole after
____________________________________________


4
  Although the Commonwealth submitted the arrest files, the court did not
expressly admit the files into evidence. Moreover, the files are not part of
the certified record on appeal.



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          five days. Please advise.

(See N.T. Contempt Hearing at 4-5.)         Significantly, the Commonwealth

offered no additional evidence to provide context for Appellant’s failures to

appear.   The remainder of the certified record on appeal is also devoid of

any explanation of the circumstances leading to the contempt hearing.

      Here, the record contains no evidence of a definite, clear, or specific

order or decree requiring Appellant to appear at the unidentified court

proceedings. See In re C.W., supra. Absent more, the evidence actually

presented failed to demonstrate that Appellant was intentionally disobedient.

Id.   Thus, the evidence was insufficient to support a finding of criminal

contempt under Section 4132(2).       See Hansley, supra.    Accordingly, we

reverse the judgment of sentence.

      Judgment of sentence reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2014




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