J-E01013-16

                             2016 PA Super 83

COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                        Appellee

                   v.

ROBERT WAYNE TAYLOR, II,

                        Appellant               No. 1723 WDA 2013


      Appeal from the Judgment of Sentence of September 24, 2013
           In the Court of Common Pleas of Armstrong County
          Criminal Division at No(s): CP-03-MD-0000212-2013


COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                        Appellee

                   v.

ROBERT WAYNE TAYLOR, II,

                        Appellant               No. 1724 WDA 2013


      Appeal from the Judgment of Sentence of September 24, 2013
           In the Court of Common Pleas of Armstrong County
          Criminal Division at No(s): CP-03-MD-0000197-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
        LAZARUS, MUNDY, OLSON, OTT, and STABILE, JJ.

OPINION BY OLSON, J.:                           FILED APRIL 11, 2016

     Appellant, Robert Wayne Taylor, II, appeals from the judgment of

sentence entered on September 24, 2014, following his bench trial

convictions for two counts of indirect criminal contempt, 23 Pa.C.S.A.

§ 6114. Upon careful review, we affirm.
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      The trial court summarized the facts and procedural history of this

case as follows:

        [J.N.K., Appellant’s former wife], initiated a protection from
        abuse action against [Appellant] on or about September 26,
        2011. A final protection from abuse order was entered on
        May 18, 2012 (the “PFA Order”). The PFA Order provides
        that [Appellant] “shall not contact [J.N.K.], or any other
        person protected under this order, by telephone or by any
        other means, including through third persons.” The only
        exception to the communication restriction in the PFA Order
        is found in paragraph 5, which provides that “the parties
        may have text message contact for the purposes of custody
        scheduling only, without said contact constituting violation
        of this order. All other terms of this order remain in effect
        during such contact.” On May 22, 2013, the parties entered
        into a separate custody consent order, paragraph 6 of which
        provides that “the parties may have text communication
        with one another for legitimate issues involving the
        children.”

        On June 21, 2013, [J.N.K.] and [Appellant] met at the
        Sheetz convenience store in Kittanning, Pennsylvania for a
        custody exchange of the parties’ two children. The children
        exited [J.N.K.’s] car and walked to [Appellant’s] vehicle.
        The parties were parked approximately four vehicle[] widths
        apart. [Appellant] then asked one of the children to ask
        [J.N.K.] whether she had spoken with her lawyer about
        matters concerning the sale of the parties’ former marital
        residence. The child went back to [J.N.K.’s] car, spoke with
        her about the matter, then returned to [Appellant’s] vehicle.
        [J.N.K.] then exited her vehicle and began speaking to
        [Appellant] about the house. After the parties’ exchange,
        [Appellant] went into the store with the children. Based on
        his indirect communication with [J.N.K.], through the child,
        [Appellant] was charged with indirect criminal contempt on
        or about July 2, 2013 (No. MD-0000197-2013).

        On or about July 13, 2013, [Appellant] sent [J.N.K.] a text
        message, again with regard to the marital residence. It
        read[] as follows:



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           I also sent an email to your lawyer today about the
           house on 4th Avenue. The bank said if you get
           paperwork done I told [your lawyer] about they will
           take your name off. So if you could please talk to
           her about it, me and the girls can start moving into
           it. Thanks. I will tell them. They said they love
           you.

        Based on the contents of the text message, [Appellant]
        again was charged with indirect criminal contempt on or
        about July 16, 2013 (No. MD-000212-2013).

        The [trial court] conducted a bench trial on both counts of
        indirect criminal contempt on July 29, 2013. At the trial,
        the parties generally did not dispute what occurred at the
        Sheetz store on June 21, 2013 or the contents of the text
        message sent by [Appellant] on July 13, 2013. The [trial
        court] ultimately found that the Commonwealth had proven
        beyond a reasonable doubt that [Appellant] had violated the
        PFA Order on both counts. The [trial court] concluded that
        the subject of both communications was not a legitimate
        concern regarding the children but a legal matter regarding
        the disposition of real estate involved in the parties’ divorce
        proceeding.

        [On September 24, 2013, t]he [trial court] sentenced
        [Appellant] to 90 days’ incarceration in the Armstrong
        County Jail, together with a $300.00 fine on both counts,
        the sentences to run concurrently. [Appellant] filed notices
        of appeal and concise statements of [errors] complained of
        on appeal at both case numbers on October 24, 2013 and
        November 18, 2013.

Trial Court Opinion, 12/13/2013, at 1-4 (superfluous capitalization and

footnote omitted).

     On appeal to this Court, Appellant challenged: (1) the sufficiency of

the evidence to support both of his indirect criminal contempt convictions,

and; (2) the discretionary aspects of his sentence. On September 26, 2014,

a divided panel of this Court reversed both of Appellant’s convictions for


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indirect criminal contempt, finding the evidence was insufficient to prove

that Appellant possessed wrongful intent in communicating with J.N.K. As a

result, the panel majority did not reach the discretionary aspects of

sentencing claim.       On November 24, 2014, this Court granted the

Commonwealth’s application for reargument en banc and ordered the

original panel decisions withdrawn.      Subsequently, the parties submitted

their arguments to the court en banc based on their original appellate briefs.

The case is now ready for disposition.

      As initially framed, Appellant presents the following issues for our

review:

          I.    Did the trial court err and/or abuse its discretion in
                failing to consider the custody modification [order]
                entered May 22, 2013 prior to the filing of the subject
                indirect criminal contempt charge[s] which allowed for
                text communication for any legitimate issue involving
                the children?

          II.   Did the trial court err and/or abuse its discretion in
                sentencing [Appellant] to a sentence of [] three
                months [of] incarceration and fines of $300.00?

Appellant’s Brief at viii (superfluous capitalization omitted).

      In his first issue presented, Appellant argues that the trial court

convicted him of both counts of indirect criminal contempt based upon the

PFA Order entered on May 18, 2012, without regard to the custody

modification order entered on May 22, 2013 that expanded contact to

include “text communication with one [another] for legitimate issues

involving the children.” Id. at 1. Appellant argues that his communications


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with J.N.K. were limited to his relocation with the parties’ children into the

marital residence, so that the children could be closer to their school. Id. at

2-3. Appellant maintains the trial court erred by concluding “the only reason

for communication on [Appellant’s] part was economic issues involving the

divorce.” Id. at 3. He claims that the subject text message and request for

communication through his daughter at a custody exchange concerned

nothing more than “paperwork involving a house where he would move with

his girls.”   Id. at 5. As such, Appellant contends that the Commonwealth

“did not and could not prove beyond a reasonable doubt that [Appellant]

willfully intended to violate the PFA.” Id. at 4.

      Our standard of review is well-settled:

         In reviewing the sufficiency of the evidence, 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. The
         Commonwealth may sustain its burden by means of wholly
         circumstantial evidence. Further, the trier of fact is free to
         believe all, part, or none of the evidence.

Commonwealth v. Woodard, 129 A.3d 480, 489-490 (Pa. 2015) (internal

citations and quotations omitted).

      Pursuant to 23 Pa.C.S.A. 6114,

         [w]here the police, sheriff or the plaintiff have filed charges
         of indirect criminal contempt against a defendant for
         violation of a protection order issued under this chapter, a
         foreign protection order or a court-approved consent
         agreement, the court may hold the defendant in indirect

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         criminal contempt and punish the defendant in accordance
         with law.

23 Pa.C.S.A. § 6114(a).

      “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). 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.

Id. (citation omitted).

      Here, the PFA order states:

         [Appellant] shall not abuse, harass, stalk, or threaten any of
         the above persons in any place where they might be found.

         Except as provided in paragraph 5 of this order, [Appellant]
         shall not contact [J.N.K.], or any other person protected
         under this order, by telephone or by any other means,
         including through third persons.

                            *         *           *

         5. […]The parties may have text message contact for
         purposes of custody scheduling only, without said contact
         constituting violation of this order. All other terms of this
         order remain in effect during such contact.

PFA Order, 5/18/2012, at 1, 4.

      Following the entry of the PFA order, on May 22, 2013, a custody order

was entered by consent of the parties providing, in pertinent part:

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         6. The parties may have text communication with one
         another for legitimate issues involving the children.

Consent Order, 5/22/2013, at 3.

     The    trial   court   determined   that   Appellant   engaged      in    two

communications with J.N.K. that constituted violations of both the PFA Order

and the custody consent order.     The first communication was through the

parties’ minor child on June 21, 2013; the other was via text message on

July 13, 2013. In so determining, the trial court concluded:

         It is undisputed that the PFA Order was clear, that
         [Appellant] was aware of them, and that [Appellant]
         voluntarily initiated both communications with [J.N.K.].
         With regard to wrongful intent, the [trial court …] concluded
         that [Appellant’s] intent was not to discuss matters
         involving the children’s well-being or custody schedule, but
         instead was to discuss with [J.N.K.] the outstanding issues
         regarding their jointly-held real property and to impress
         upon her [Appellant’s] desire to come to a quick resolution.
         The [trial court] also noted as part of its findings that
         [Appellant] had violated the PFA Order on 11 occasions,
         eliminating any possibility that the communications were
         unintentional or benign.

Trial Court Opinion, 12/13/2013, at 6.      For the reasons that follow, we

agree.

     We will review the two communications that served as the basis of the

individual convictions separately. With regard to the communication on June

21, 2013, there is no dispute that during a custody exchange Appellant

communicated with J.N.K. through the parties’ oldest daughter.                N.T.,

7/29/2013, at 10-11, 17-18.      In reading the PFA Order and the custody

consent order together, Appellant was not permitted any contact with J.N.K.


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“by telephone or by any other means, including through third persons”

except for “text message contact for purposes of custody scheduling only”

and then subsequently modified to provide for “text communication with one

another for legitimate issues involving the children.”     The orders at issue

were clear that at no time was Appellant permitted contact with J.N.K.

through a third party. Appellant does not dispute that the PFA Order was

sufficiently clear as to the prohibited conduct, and that he had notice of the

PFA Order. Further, Appellant admitted that he initiated contact through his

daughter, a volitional act. Thus, the first three elements above, as required

to establish indirect criminal contempt, have been met with regard to the

conviction related to the communication via the parties’ daughter.

      As for the fourth element needed to establish indirect criminal

contempt, Appellant’s first appellate issue focuses almost entirely on the trial

court’s determination that Appellant’s communication constituted wrongful

intent. Regarding the incident at Sheetz, J.N.K. testified that Appellant was

“asking about what was going on with [another] house [the parties’ jointly

owned] and that [Appellant] wanted to move into it” and that Appellant

“approached [her] in regards to the sale of the other house.”             N.T.,

7/29/2013, at 10. Appellant told J.N.K. that he did “not want to move into

the other house if it [were] going to be a PFA violation for him to move in

there[.]” Id. at 11. She further testified that Appellant stated:

        I want to move into the other house. You haven’t talked to
        your attorney yet. Why haven’t you talked to your attorney
        and that I don’t want to move into the other house if you

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J-E01013-16


        are going to be turning me in for PFA violations. [To which
        J.N.K. replied,] don’t violate the PFA and I won’t turn you
        in.

Id. at 14.

      In contrast to J.N.K.’s testimony, Appellant initially explained his

reasons for communicating with J.N.K. as follows:

        There has been – the house has not been paid for for
        almost a year and I made arrangements with the bank to
        try to get back into it. They told me unless this paperwork
        is filled out and signed by her, then they are not going to
        refinance or they are just going to foreclose on the house
        because they are not going to try and work with it.

Id. at 16. Regarding the incident at Sheetz, Appellant testified:

        I asked [the oldest daughter] to go over and ask her mom if
        she had talked to her lawyer about that house, because it’s
        coming up soon to get the paperwork done. She ran over
        and talked to her mom and ran back over to me.

        At that time, [J.N.K.] stepped out of her car and walked to
        the back of her car. I did not step any closer to her, and
        she started yelling at me about she ain’t signing this
        paperwork. She hasn’t talked to her lawyer. She hasn’t
        done this, going on. And all I said was, okay, and me and
        the girls walked into Sheetz.

Id. at 18.

      Appellant claims that the foregoing evidence establishes that his intent

was to communicate regarding the living arrangements and possible

relocation of the parties’ children.    However, the trial court concluded

Appellant’s intent was not to discuss matters involving the children’s

well-being or custody schedule, but instead was to discuss with J.N.K. the

outstanding issues regarding their jointly-held real property and to impress



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upon her Appellant’s desire to come to a quick resolution.     We reach the

same conclusion. The trial court found J.N.K.’s testimony more credible and

we are not permitted to usurp the trial court’s credibility determinations

when the record supports those determinations. Here, when viewed in the

light most favorable to the Commonwealth, the abovementioned testimony

demonstrates that Appellant’s intent was to shore up financial plans for the

former marital residence.    Although, at the time of the communication,

Appellant’s purported goal was to move into the home and eventually

relocate the parties’ children, the children’s interests were remote and

tangential. We agree with the trial court that Appellant communicated with

wrongful intent through a third party. Thus, there was ample support in the

record to establish each element of indirect criminal contempt at docket

number No. MD-0000197-2013.

     Next, we examine the text message sent on July 13, 2013.             As

previously mentioned, it read as follows:

        I also sent an email to your lawyer today about the house
        on Fourth Avenue. The bank said if you get paperwork
        done I told [your lawyer] about they will take your name
        off. So if you could please talk to her about it, me and the
        girls can start moving into it. Thanks. I will tell them.
        They said they love you.

N.T., 7/29/2013, at 6.

     Again, there is no dispute that Appellant received notice of the PFA

Order and that the PFA Order was sufficiently clear.    Moreover, Appellant

readily admits that he volitionally sent the text message at issue. Appellant


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claims, however, that the trial court erred in determining his intent was

wrongful because he “could not have been trying to gain an economic

advantage because there was no economic value in this home” and “[h]is

only motivation for communication regarding this home was for his

children.” Appellant’s Brief at 4.

        The trial court determined the text message did not relate genuinely to

the children, but instead “was [sent] to discuss with [J.N.K.] the outstanding

issues regarding their jointly-held real property and to impress upon her

[Appellant’s] desire to come to a quick resolution.” Trial Court Opinion,

12/13/2013, at 6. We agree and discern no error. J.N.K. testified that the

sale of the joint property was related to the parties’ divorce.                N.T.,

7/29/2013, at 5.     Appellant was prodding J.N.K. to move faster with “the

paperwork” to transfer title on the house. While relocation with the children

potentially loomed on the horizon, the main thrust of the communication

was financially centered and focused upon the transfer of marital property.

Financial issues surrounding the house had to be resolved before relocation

could be considered or even discussed.

        Moreover,   Appellant   knew    that,   at   the   time   of   the   subject

communications, J.N.K. was represented by an attorney. N.T., 7/29/2013,

at 9.     As previously stated, J.N.K. testified, regarding the communication

sent through the parties’ oldest daughter, that Appellant said, “You haven’t

talked to your attorney yet.    Why haven’t you talked to your attorney[?]”

Id. at 14. According to the subsequent text message to J.N.K., Appellant

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submitted paperwork regarding the sale of the marital home to J.N.K.’s

attorney.     He then communicated this fact to J.N.K.              The foregoing

demonstrates that Appellant knew to communicate with J.N.K.’s attorney,

but contacted J.N.K. anyway when financial matters surrounding the house

were progressing too slowly for him. Thus, we cannot discern a legitimate

reason for the subject communication, other than to harass or annoy J.N.K.

Accordingly, Appellant’s communication satisfies the element of wrongful

intent under the indirect criminal contempt statute. Hence, we affirm

Appellant’s conviction for indirect criminal contempt based upon text

message      communication        at   docket      number   No.   MD-000212-2013.

Accordingly, Appellant’s first issue fails.1

____________________________________________


1
  We note that, at the hearing on the indirect criminal contempt charge, the
trial court stated “[y]ou have been here [11] times.         You have been
convicted [11] times.” N.T., 7/29/2013, at 20. The trial court also
referenced Appellant’s 11 prior violations of the PFA Order in its 1925(a)
opinion. Trial Court Opinion, 12/13/2013, at 6. In reviewing the certified
record, we could not find any evidence presented by the Commonwealth
with respect to 11 prior violations of the PFA Order or prior convictions for
indirect criminal contempt. However, the trial court would be permitted to
take judicial notice of any prior violations and convictions.             See
Commonwealth v. Brown, 839 A. 2d 433, 435 (Pa. Super. 2003)(“A court
may take judicial notice of an indisputable adjudicated fact.”); see also
Pa.R.E. 201(b)(2) (“The court may judicially notice a fact that is not subject
to reasonable dispute because it…can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.”) Moreover,
Appellant’s counsel did not object to this statement made by the trial court.
Hence, assuming Appellant did have multiple violations of the PFA Order
and/or convictions stemming from these violations, this fact bolsters the trial
court’s conclusion that Appellant’s most recent communications were made
with wrongful intent and therefore, constituted harassment.



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       In his second issue presented, Appellant contends that his sentence of

90 days of incarceration and a $300.00 fine “was extremely severe” because

“[t]here were no threats or harassment of any kind.”         Appellant’s Brief at

5-6.   However, Appellant “acknowledge[s] that a violation of an [o]rder

under [the] Protection from Abuse Act is punishable with incarceration of up

to six months in jail and a $300[.00] fine[.]”     Id. at 5.   Upon review, we

conclude that Appellant has waived this claim.

       Appellant’s issue implicates the discretionary aspects of sentencing.

We previously determined:

         Challenges to the discretionary aspects of sentencing do not
         entitle an appellant to review as of right. An appellant
         challenging the discretionary aspects of his sentence must
         invoke this Court's jurisdiction by satisfying a four-part test:

            We conduct a four-part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, see Pa.R.Crim.P.
            720; (3) whether appellant's brief has a fatal defect,
            Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or in a motion to modify the sentence imposed.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal

case citations omitted).




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      Appellant has not satisfied the procedural prerequisites for appellate

review of his challenge to the discretionary aspects of his sentence.

Appellant failed to include a separate Pa.R.A.P. 2119(f) statement in his

appellate brief.   “[W]hen the appellant has not included a Rule 2119(f)

statement and the [Commonwealth] has not objected, this Court may ignore

the omission and determine if there is a substantial question that the

sentence imposed was not appropriate, or enforce the requirements of

Pa.R.A.P.   2119(f)   sua    sponte,     i.e.,   deny   allowance   of   appeal.”

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).               Here,

the Commonwealth did not object to Appellant’s omission of his Rule 2119(f)

statement. However, our review of the record confirms that Appellant failed

to raise his discretionary sentencing claim at his sentencing hearing or by

way of a post-sentence motion. As such, Appellant did not satisfy the

requirements to invoke this Court’s jurisdiction and, thus, he waived his

discretionary sentencing challenge.

      Judgment of sentence affirmed.

      President Judge Emeritus Ford Elliott and Judges Bowes, Shogan,

Lazarus and Stabile join this Opinion.

      President Judge Emeritus Bender files a Dissenting Opinion in which

Judges Mundy and Ott join.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




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