J-S09012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                     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.

MEMORANDUM BY PANELLA, J.                                    FILED MAY 20, 2016

     Appellant, Andrew James Pudup, appeals from the judgment of

sentence entered by the Honorable Pamela A. Ruest, Court of Common Pleas

of Centre County. We affirm.

     The relevant facts and procedural history are as follows. Pudup was

charged with driving under the influence (DUI) and careless driving. Pudup

subsequently entered into an Accelerated Rehabilitative Disposition (ARD)

program; however, his program was later terminated. Consequently,

Pudup’s case was scheduled for a non-jury trial, where the trial court, the

Honorable Bradley P. Lunsford, found Pudup guilty of DUI and careless

driving. Thereafter, on June 25, 2013, the trial court imposed a sentence of

seventy-two   (72)    hours    to     one   hundred    and   twelve   (112)   days’

imprisonment, with credit for 112 days already served. The trial court also
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ordered Pudup to pay a fine of $1,000.00 plus court costs and fees. Pudup

filed a direct appeal, which this Court denied.

        On April 30, 2015, the Commonwealth filed a petition to find Pudup in

indirect criminal contempt for his failure to make the ordered payments.

Thereafter, the trial court, the Honorable Thomas K. Kistler, issued a bench

warrant for Pudup due to his failure to appear at the scheduled hearing. On

July 2, 2015, the trial court, the Honorable Pamela A. Ruest, held a hearing

with Pudup present. On that same day, the trial court entered an order

finding Pudup in indirect criminal contempt1 and directing him to pay

$300.00 by September 1, 2015 and $50.00 each month thereafter until his

outstanding balance of $3,306.50 is paid in full. This timely appeal followed.

        In his sole issue on appeal, Pudup challenges the sufficiency of the

Commonwealth’s        evidence     to   support   his   indirect   criminal   contempt

conviction. Specifically, Pudup argues that the Commonwealth failed to

provide sufficient evidence showing that he willfully failed to obey the court

order directing him to pay a fine plus court costs and fees.

        “When reviewing a contempt conviction … we are confined to a

determination of whether the facts support the trial court decision. We will

reverse a trial court’s determination only when there has been a plain abuse

of discretion.” Commonwealth v. Brumbaugh, 932 A.2d 108, 111 (Pa.


____________________________________________


1
    23 Pa.C.S.A. § 6114.



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Super. 2007) (citation omitted). “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) (citation

omitted).

      Our standard of review in assessing the sufficiency of the evidence to

sustain an appellant’s conviction is as follows.

      The standard we apply … is whether 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 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.

Brumbaugh, 932 A.2d, at 109-110 (citation omitted).

      “Indirect criminal contempt is a violation of a court order that occurred

outside the court’s presence.” Commonwealth v. McMullen, 961 A.2d 842,




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849 (Pa. 2008) (citation omitted). To establish indirect criminal contempt,

the Commonwealth must prove the following.

       (1) [T]he 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.

Brumbaugh, 932 A.2d at 110 (unnecessary capitalization and citation

omitted).

       Here, the order entered by the trial court on June 25, 2013 clearly

stated that Pudup was to “pay a fine in the amount of One Thousand Dollars

($1,000.00)” plus “the costs of prosecution, supervision fee, and costs of

incarceration.” Order, 6/25/13, at ¶¶ 1, 2. Given the clear language of the

order, Pudup was aware of his duty to pay the fine plus court costs and fees.

At the hearing, Pudup confirmed that he had notice of the order when he

agreed to pay $300 toward his outstanding balance by September 1, 2015.

See N.T., Bench Warrant Hearing, 8/10/15, at 5-7. Moreover, Pudup stated

that he could not make any payment by August 1, 2015 due to his inability

to find work.2 See id. Pudup’s statement confirms that he knowingly failed
____________________________________________


2
  Our esteemed colleague, the Honorable Anne E. Lazarus, in her dissent,
takes issue with the fact that Pudup was never sworn in as a witness before
providing his statements at the hearing. See Pa.R.E. 603. However, since
neither Pudup nor his counsel objected to the unsworn testimony at the trial
court level, this issue is waived. See Pa.R.A.P. 302(a); Tecce v. Hally, 106
A.3d 728, 732 (Pa. Super. 2014) (“It is axiomatic that, to preserve an
objection for appeal, the objection must be raised before the trial court. …
[T]he failure to object to unsworn testimony subjects a litigant to waiver.”)
(Footnote Continued Next Page)


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to make the ordered payments and violated the order volitionally. Finally,

Pudup’s wrongful intent can be imputed simply by virtue of the fact that he

intentionally failed to make the ordered payments. See Brumbaugh, 932

A.2d at 111.

      Viewing all the evidence in the light most favorable to the verdict

winner, we hold that the Commonwealth presented sufficient evidence for

the court to find every element of indirect criminal contempt beyond a

reasonable doubt.

      Judgment of sentence affirmed.

      Judge Jenkins joins the memorandum.

      Judge Lazarus files a dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




                       _______________________
(Footnote Continued)

See also United States v. Perez, 651 F.2d 268, 273 (5th Cir. 1981);
Beausoliel v. United States, 107 F.2d 292, 294 (D.C. Cir. 1939). In
addition, Pudup did not even raise this issue on appeal.



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