J-A18035-16

                                  2016 PA Super 200



COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

JACK T. LAMBERT,

                             Appellant                 No. 2209 MDA 2015


           Appeal from the Judgment of Sentence October 30, 2015
                In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-MD-0001849-2015


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                       FILED SEPTEMBER 07, 2016

        Jack T. Lambert (“Appellant”) appeals from the judgment of sentence

entered by the Court of Common Pleas of Centre County, which found him in

indirect criminal contempt of a prior Protection From Abuse (“PFA”) order1

and sentenced him to 30 days’ incarceration and a consecutive period of 5

months’ probation.          Appellant contends that the Commonwealth failed to

prove he intended to violate the PFA order and asserts that the PFA order’s

restriction against posting any remarks or images involving the victim on

social media violated his constitutional right to free speech. We affirm.



____________________________________________




1
    23 Pa.C.S. § 6114.



*Former Justice specially assigned to the Superior Court.
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      In early October of 2015, the plaintiff (“Plaintiff”) ended her one and

one-half year intimate relationship with Appellant because of what she

termed “his mental abuse and everything he has absolutely put me through,

especially in the last six months.”    N.T. 10/30/15 at 4.     She filed an

emergency PFA petition on October 13, 2015, and, on October 26, 2015,

obtained a final PFA order against Appellant. N.T. at 5. The order directed

that, for the ensuing three years, Appellant was prohibited from having any

contact with Plaintiff, either directly or indirectly, at any location. Final

Order, filed 10/26/15, at 2.; C.R. #3.    Moreover, the order directed that

“[Appellant] may not post any remark(s) and/or images regarding

Plaintiff, on any social network(s), including, but [not] limited to,

Facebook, Myspace, Twitter, or any other electronic networks.”            Id.

(emphasis in original).

      The day following entry of the final PFA order, Appellant authored a

series of posts on Facebook alluding to a nameless, former paramour, his

disapproval of how she ended their relationship, and the emotions he was

experiencing because of the unfair treatment he believed he received from

both her and the justice system. The following posts represent a sample of

the Facebook comments at issue:

      • I’ve lost my love and trust in people. I don’t think I’ll ever
        trust again. I gave her my full trust just for her to use it
        against me and then has somebody else within days. She
        never loved me but I loved her and still do. But things are
        different now. So, it is time to let go of her and let her be
        happy and hopefully she someday realizes that she needs


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        help and turn back into the wonderful woman I love. She has
        three years now without me taking care of her and doing
        everything for her. So, maybe she will finally see things
        differently and see I’m willing to wait for her. I have to.
        She’s my soulmate.

     • I’m just so fucking depressed. I am so sorry, Facebook, but I
       lost my best friend, my love, my soul. My heart is crushed.
       God only knows what I will do next. I am so lost right now.
       God, help me through this. Please give me my love back. I
       have been trying to do everything right but I screw up
       sometimes. I can’t deal with the pain.


     • Wondering how you can go from lovin [sic] someone who
       takes excellent care of you to absolutely hating them people
       have arguments but that doesn’t mean you stop loving them
       unless you never really loved them at all and was just using
       them.


     • How can someone say they love someone and within a few
       days be with someone else is that a slut or what[?]


     • [Appellant updated his profile picture, which depicts his
       nautical star tattoo, one of a set of matching tattoos that both
       he and Plaintiff got on their lower legs while they were a
       couple.]


     • Justice system sucks and too many women abuse it.

Commonwealth’s Exhibit 1, N.T. at 7-13.

     Plaintiff contacted authorities and asserted that Appellant’s Facebook

activity represented a violation of the PFA order filed one day earlier.

Bellefonte Police investigated her claim and forwarded Appellant’s posts to

the Centre County District Attorney’s Office, which took the view that

Appellant had violated the PFA order’s prohibition against referencing the

Plaintiff on social media.   Accordingly, the DA’s office filed a criminal

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complaint charging Appellant with indirect criminal contempt of the court’s

PFA order.

       At the hearing of October 30, 2015, Plaintiff described her fearful

reaction to Appellant’s posts, which were entered into evidence during her

testimony.     Though the posts never identify her by name, Plaintiff was

certain she was the subject of Appellant’s commentary. The use of personal

pet names such as “soulmate,” “love of his life,” and “Sunshine,” 2 displaying

the image of their shared tattoo, discussing relationship troubles, criticizing

the justice system and how women abuse it, and referencing the “three

years” she would have “without [him] taking care of her” all pertained to her

and the three-year duration of the PFA order, Plaintiff testified. N.T. at 7, 9-

10, 11-13, 16.

       As to Appellant’s comment “God only knows what I will do next,”

Plaintiff testified as follows:

       Q:   When you read things like this saying, [“]God only knows
       what I will do next,[”] how do you feel?

       A:    What he says is true.             God only knows what he will do
       next.

       Q:     Does that concern you at all?

       A:     Most definitely.
____________________________________________


2
  Plaintiff provided unrebutted testimony that the post containing Appellant’s
use of the pet name “Sunshine” is not among the October 27, 2015, series
of posts appearing in the Commonwealth’s Exhibit 1, but appears, instead, in
a subsequent post made by Appellant. N.T. at 16.



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     Q:    Why? Why does that worry you?

     A:    That worries me because what he – what has not been
     directed to the Court.

     Q:    What do you mean by that?

     A:   There are things that Jack has wanted to do that I have
     stopped him to do [sic].

     Q:    Can you tell us what you are talking about? The Court
     doesn’t have that information.    So, you’re referencing why
     you’re scared. You can tell the Court why you’re scared when
     you read posts like this. Because you know what he’s referring
     to?

     A:    Yes, I do.

     Q:    Tell us.

     A:   But if I do that and he gets out, I’m afraid of what he will
     do next.

     Q:    Do you have concerns for your own physical safety?

     A:    Absolutely.

     Q:    Do you have concerns for the safety of others?

     A:    Absolutely.

     ***
     Q:    [After establishing that plaintiff saved all Appellant’s posts
     to her clipboard before he decided to remove them] So, at some
     point last night, the posts that we just talked about were
     removed?

     A:    Correct, except for the one that’s there today that says
     this war is not over.

     Q:    When was that posted?




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J-A18035-16


      A:  I believe last night or Wednesday. I’m sorry.       I believe
      Wednesday. I could be wrong on the date.

      Q:      Was it at some point after these posts?

      A:      Yes.

      Q:      That’s something that you actually viewed?

      A:      Yes.

      Q:      Were you concerned about that?

      A:      Yes.

      Q:      Why?

      A:    I don’t know what Jack is capable of. Jack has been in and
      out of many mental hospitals throughout our relationship. I
      have personally had to 302 Jack. He has involuntary (sic) [in
      original] put himself in mental institutions many times for
      homicidal thoughts – is one of the main things that really
      scare[s] me.

N.T. 12-14.

      On cross-examination, Plaintiff testified that she accessed Appellant’s

comments, all of which were contained in “public posts,” through her own

Facebook account.     N.T. at 15.   She said she often checked his Facebook

page for her own safety because he “is known to post all of his feelings on

his Facebook, and it would give me enough time to react.” N.T. at 15-16.

      Arresting officer, Sergeant Jason Brower of the Bellefonte Borough

Police Department, testified that Appellant admitted “some of the posts were

about her [Plaintiff] and some were about somebody else….”        N.T. at 19.

Appellant, himself, testified similarly, although he insisted that most of his



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J-A18035-16



posts were about somebody else—a former love, with only the post

referencing “three years” pertaining to Plaintiff. N.T. at 22.

      On    cross-examination,    Appellant    admitted    posting   something

regarding Plaintiff despite knowing that the court’s order specifically

prohibited him from doing so. N.T. at 25-26. On re-direct, Appellant said he

did not intend to violate the PFA order, testifying “I didn’t think it was

exactly about her because I didn’t say her name or nothing.”         N.T. at 23.

Appellant also claimed he thought he had blocked Plaintiff’s access to his

Facebook postings, and he does “not know how it became unblocked.” N.T.

at 24-25.

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

Indirect Criminal Contempt for violation of the PFA order and sentenced him

as noted, supra. This timely appeal followed.

      Appellant presents two questions for our review:

      1. Did the Trial Court abuse its discretion by finding [Appellant]
         in Indirect Criminal Contempt of his Protection From Abuse
         Order where there was no wrongful intent and [Appellant’s]
         social media posts did not threaten, stalk, harass, or contact
         [Plaintiff]?

      2. Is the restriction in [the] Trial Court’s Protection From Abuse
         Order from posting any remarks and/or images “regarding”
         [Plaintiff] on any social media networks an unconstitutional
         violation of free speech as protected by the Constitution of
         the Commonwealth and the Constitution of the United States?

Appellant’s brief at 6.




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J-A18035-16



        “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.” Buchhalter v. Buchhalter, 959

A.2d 1260, 1262 (Pa.Super. 2008).3             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 omitted). 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. Baker, 722
____________________________________________


3
    The Act defines abuse, in pertinent part, as:

        “Abuse.” The occurrence of one or more of the following acts
        between family or household members, sexual or intimate
        partners or person who share biological parenthood.

        ***
        (2) Placing another in reasonable fear of imminent serious bodily
        injury.

        ***
        (5) Knowingly engaging in a course of conduct or repeatedly
        committing acts toward another person, including following the
        person, without proper authority, under circumstances which
        place the person in reasonable fear of bodily injury. The
        definition of this paragraph applies only to proceedings
        commenced under this title and is inapplicable to any criminal
        prosecution commenced under Title 18 (relating to crimes and
        offenses).

23 Pa.C.S. § 6102(a).




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J-A18035-16



A.2d 718, 720 (Pa.Super. 1998) (en banc).       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, 619 (Pa.Super. 2012).

            [W]hen 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. Williams v. Williams, [ ]
      681 A.2d 181, 183 (Pa.Super. 1996)[.] We will reverse a trial
      court's determination only when there has been a plain abuse of
      discretion.

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

citations omitted).

      In his first issue, Appellant contends the Commonwealth failed to

prove he acted with the intent to contact Plaintiff or violate the PFA order in

any way. Specifically, Appellant posits:

      The posts at issue “did not mention [Plaintiff’s] name, were on
      [Appellant’s] personal profile page, and in no way alerted
      [Plaintiff] to their presence. . . .There is no indication that any
      other person besides [Plaintiff] would even know who [sic]
      [Appellant] was speaking about, nor that [Plaintiff] would have
      ever known about the posts had she not purposefully sought
      them out.

Appellant’s brief at 16.




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J-A18035-16



       Appellant admitted, however, that he posted comments and an image

“regarding Plaintiff” on an electronic network despite knowing the PFA order

prohibited him from doing so.             Though Appellant refrained from using

Appellant’s proper name, the insinuation that Plaintiff and the recent PFA

order at issue were the subjects of Appellant’s Facebook activity was obvious

and unmistakable. The temporal proximity between the hearing and posts,

along with the various negative references to both a recently estranged

paramour who would realize her mistake over the next three years and a

judicial system which she allegedly abused to his detriment, 4 lead to the

inescapable conclusion that Appellant was referring to Plaintiff.

       Under such circumstances, and guided by the overarching purpose of

the PFA to prevent abuse, we find ample evidentiary support for the trial

court's determination that Appellant possessed the wrongful intent to violate

the PFA.     Kolansky, supra.         See Commonwealth v. Brumbaugh, 932

A.2d 108, 111 (Pa.Super. 2007) (“[W]rongful intent can be imputed by

virtue of the substantial certainty that [one's actions will be]. . .in violation

____________________________________________


4
  Our conclusion in this respect, moreover, leads us to reject as unfounded
Appellant’s related argument that the PFA order was not definite, clear, or
specific where it proscribed electronic postings “regarding” Plaintiff. On this
point, Appellant argues “[t]he imprecise wording of the Order’s social media
restriction was not clear or specific enough to indicate Appellant would be in
violation for posting about himself, his feelings, or his tattoos.” Appellant’s
brief at 20. As seen in the excerpts and testimony, supra, the record belies
his claim of being the sole subject of his public postings.




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J-A18035-16



of the PFA Order.”); Commonwealth v. Haigh, 874 A.2d 1174 (Pa.Super.

2005) (holding judges should use common sense and consider context and

surrounding factors in making determination as to whether violation of a PFA

is truly intentional).   Accordingly, we reject Appellant’s argument that no

wrongful intent attended his Facebook activity on the day following entry of

the PFA order against him.

      In his remaining issue, Appellant contends that the PFA order in

question violates his free speech rights contained in the First Amendment of

the United States Constitution and Article 1, Section 7 of the Pennsylvania

Constitution.   He advances a four-pronged attack on the court’s order in

making this claim, asserting it:   (1) represents an unlawful content-based

restriction on protected speech; (2) imposes an impermissible blanket

prohibition on any remark regarding Plaintiff without demonstrating how it

advances    a   compelling    governmental    interest;   (3)   represents   an

impermissible prior restraint on protected speech; and (4) imposes an

unconstitutionally vague and overbroad restriction on social media usage.

      The Commonwealth responds that the PFA Order is not content-based

but is, instead, contact-based, requiring Appellant to refrain from referring

to Plaintiff with words or images appearing in publicly accessible electronic

networks.   As long as the restriction is “justified without reference to the

content of the regulated speech,” “is narrowly tailored to serve a significant

or substantial governmental interest,” and leaves “open ample alternative

channels of communication[,]” the Commonwealth maintains, the restriction

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J-A18035-16



is reasonable. Appellee’s brief at 24 (citing Golden Triangle News, Inc. v.

Corbett, 689 A.2d 974 (Cmwlth. Ct. 1997)).

     We first set forth our scope and standard of review, noting that the

United States Supreme Court has stated that in reviewing First Amendment

cases, appellate court must conduct a review of the entire record.          See

Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115

L.Ed.2d 888 (1991); In re Condemnation by Urban Redevelopment

Auth. of Pittsburgh, 913 A.2d 178, 183 (Pa. 2006). The First Amendment

provides that “Congress shall make no law ... abridging the freedom of

speech.” U.S. Const. amend. I.       The First Amendment's protection of

freedom of expression is made applicable to the states through the

Fourteenth Amendment. Id.

           When the government restricts expression due to the
     content of the message being conveyed, such restrictions are
     allowable only if they pass the strict scrutiny test. That test is
     an onerous one, and demands that the government show that
     the restrictions are “(1) narrowly tailored to serve (2) a
     compelling state interest.” Republican Party of Minnesota v.
     White, 536 U.S. 765, 775, 122 S.Ct. 2528, 153 L.Ed.2d 694
     (2002).

           Yet, strict scrutiny is not applied simply because a plaintiff
     raises a claim that its freedom of expression has been curtailed.
     The High Court has recognized that where the governmental
     regulation applies a content-neutral regulation to expressive
     conduct, strict scrutiny is an inappropriate test to apply. Texas
     v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342
     (1989).    The test which is applied to such content-neutral
     regulations was first enunciated in the seminal case of United
     States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672
     (1968). In O'Brien, the defendant was convicted of violating a
     statute which criminalized the act of destroying or mutilating a

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J-A18035-16


      draft card. The defendant had burned his Selective Service
      registration certificate in order to convince people to adopt his
      anti-war beliefs. The defendant argued that the conviction could
      not stand as the statute criminalizing the destruction of draft
      cards ran afoul of the First Amendment.

             In analyzing this claim, the O'Brien Court stated that
      where expressive and nonexpressive conduct are combined in
      the same activity, “a sufficiently important governmental interest
      in regulating the nonspeech element can justify incidental
      limitations on First Amendment freedoms.” Id. at 376, 88 S.Ct.
      1673.     The O'Brien Court decreed that such “government
      regulation is sufficiently justified” if:

            1) Promulgation of the regulation is within the
            constitutional power of the government;

            2) The regulation furthers an           important    or
            substantial governmental interest;

            3) The governmental interest is unrelated to the
            suppression of free expression; and

            4) The incidental restriction on First Amendment
            freedoms is no greater than essential to the
            furtherance of that interest.

      Id. at 377, 88 S.Ct. 1673. The O'Brien Court found that all four
      prongs were met and thus denied the defendant relief.

In re Condemnation by Urban Redevelopment Auth. of Pittsburgh,

913 A.2d at 183–84. See also Clark v. Community for Creative Non-

Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (observing

that content-neutral restrictions on speech are only valid if they are justified

without reference to the content of the regulated speech, are narrowly

tailored to serve a significant governmental interest unrelated to speech,




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J-A18035-16



and leave open ample alternative channels for communication of the

information).5

       A review of the PFA Order at bar reveals that its proscription suffers

from none of the infirmities Appellant alleges in his argument, for the

proscription in question is not content-based, clearly advances an important

governmental interest unrelated to speech, and is narrowly-tailored to

advance this interest. It is undisputed that the proscription, itself, is limited

to social and electronic network remarks “regarding Plaintiff.”      As written,

therefore, the proscription is not concerned with the content of Appellant’s

speech but with, instead, the target of his speech, namely, Plaintiff, whom

the court has already deemed the victim of his abusive conduct.

       An abuser’s mere posting of any reference to his or her victim on

social media, regardless of content, is, thus, automatically considered

targeting tantamount to making impermissible contact with the victim. For
____________________________________________


5
  The Pennsylvania Supreme Court has recognized that Article I, Section 7 of
the Pennsylvania Constitution provides broader protections of expression
than the related First Amendment guarantee in a number of different
contexts. DePaul v. Com., 969 A.2d 536, 546 (Pa. 2009) (citing, e.g., Ins.
Adjustment Bureau v. Ins. Comm'r, 542 A.2d 1317, 1324 (Pa. 1988)
(Article I, Section 7 does not allow prior restraint or other restriction of
commercial speech by governmental agency where legitimate, important
interests of government may be accomplished in less intrusive manner)).
However, we conclude, infra, that the PFA Order’s proscription could not
advance the important governmental interest of preventing victim abuse in
social media by a less intrusive manner than simply prohibiting remarks
regarding the victim.     Accordingly, Appellant’s state constitution-based
claims are equally unavailing.




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J-A18035-16



an adjudged abuser to refer to a victim in publicly trafficked electronic

forums, for whatever reason, is to exercise control over the victim in public,

thus perpetuating the abuse of the victim.      Whether a remark is patently

innocuous or offensive, informational or nonsensical is of no moment under

the order as written; it is the mere reference to the victim, alone, that

triggers the proscription.

      Viewing the PFA Order in light the above-referenced intermediate test

applicable to content-neutral, governmental restrictions on speech, we

discern no infirmity with its proscription as stated.        The provision is

narrowly-tailored to advance the important governmental interest at stake,

i.e., the cessation of abuse in intimate or formerly intimate relationships,

supra, while remaining silent as to other channels of communication

available to Appellant.      Accordingly, we discern no merit to Appellant’s

constitutional challenge to the PFA order as it applied the PFA in his case.

      Judgment of sentence is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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