J-S78001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DORIAN HARRIS,

                            Appellant                  No. 903 WDA 2015


         Appeal from the Judgment of Sentence Entered May 20, 2015
             In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): FD-14-02045


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED NOVEMBER 7, 2016

        Appellant, Dorian Harris, appeals from the judgment of sentence of

two concurrent terms of 6 months’ imprisonment, imposed after he was

convicted of two counts of indirect criminal contempt (ICC), 23 Pa.C.S. §

6114.     Harris challenges the sufficiency of the evidence to sustain his ICC

convictions. After careful review, we affirm in part and reverse in part.

        Harris was charged with two counts of ICC stemming from separate

incidents where he encountered Markia Jones and purportedly violated a

protection from abuse (PFA) order that Jones had obtained against him.

Following an ICC hearing on May 20, 2015, the trial court found Harris guilty

of both charges. That same day, the court sentenced Harris to 6 months’

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*
    Former Justice specially assigned to the Superior Court.
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incarceration for each ICC offense, imposed to run concurrently. Harris filed

a timely notice of appeal, and also timely complied with the court’s order to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. The court filed a responsive opinion on March 7, 2016.

      Herein, Harris presents one issue for our review: “Whether the trial

court committed reversible error as the evidence was insufficient to sustain

[Harris’s] conviction for both counts of indirect criminal contempt.” Harris’s

Brief at 5.

            Our standard of review in assessing whether sufficient
      evidence was presented to sustain appellant's conviction is well-
      settled.

         The standard we apply in reviewing the sufficiency of the
         evidence 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.




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      Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
      2001) (citations and quotations 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. Padilla, 885 A.2d
      994 (Pa. Super. 2005). “Where a PFA order is involved, an
      indirect criminal contempt charge is designed to seek
      punishment for violation of the protective order.” Id. at 996. As
      with those accused of any crime, “one charged with indirect
      criminal contempt is to be provided the safeguards which statute
      and criminal procedures afford.” Id. at 996–97 (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. Commonwealth v. Ashton, 824 A.2d 1198, 1202 (Pa.
      Super. 2003).

Commonwealth v. Brumbaugh, 932 A.2d 108, 109–10 (Pa. Super. 2007).

      In this case, Markia Jones obtained a final PFA order against Harris on

November 18, 2014. Harris does not dispute that he had notice of the PFA

order. However, he challenges each of his two ICC convictions for violations

of that order on slightly different grounds. We will address his arguments

pertaining to each incident in turn.

      First, Harris contends that the evidence was insufficient to support his

ICC conviction for an encounter he had with Jones on January 19, 2015. At

the ICC hearing, Jones testified that on that date, she was employed by “XO

Café and Lounge” and, as part of that employment, she would “do bottle

service at certain shows that go on throughout Pittsburgh.” N.T. Hearing,

5/20/15, at 7.   On January 19, 2015, Jones was working an event at a night



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club called the Penthouse.   Id. at 8.    She testified that she was walking

through the club with drinks in her hand when Harris walked past her. Id.

Jones stated that Harris “looked at [her] and said something and continued

moving.” Id. Jones said that Harris gave her “the look of death” and she

“felt threatened.” Id. at 19. Jones called police shortly after her encounter

with Harris, and he was subsequently arrested at the club. Id. at 9.

      On appeal, Harris claims that the evidence failed to demonstrate that

Jones worked at the Penthouse and, thus, the Commonwealth failed to prove

he violated the provision of the final PFA order directing that he not go to

Jones’s place of employment.      See Final PFA Order, 11/18/14, at 2 ¶3

(unnecessary capitalization and emphasis omitted).    Harris also argues that

he did not “abuse, stalk, harass, threaten or attempt to use physical force”

against Jones at the club and, consequently, he did not violate that provision

of the final PFA order.   See id. at 1 ¶1 (unnecessary capitalization and

emphasis omitted). Lastly, Harris contends that he did not contact Jones at

the Penthouse club in violation of the PFA order’s no-contact provision, which

states: “Defendant shall not contact Plaintiff, protected under this order,

either directly or indirectly, by telephone or by any other means, including

through third persons.” Id. at 2 ¶4.




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         We disagree with Harris that he did not ‘contact’ Jones at the club.1

According to Jones’s testimony, Harris walked past her in the Penthouse

nightclub, made threatening eye contact with her, and said something. The

court was permitted to infer from Jones’s testimony that Harris’s remark was

directed at Jones and that, therefore, Harris ‘contacted’ Jones in violation of

the PFA order’s ‘no-contact’ provision.          Moreover, contrary to Harris’s

argument on appeal, Jones’s testimony was sufficient to establish that Harris

contacted Jones intentionally, and that he did so with the purpose of making

her feel scared or threatened.           Thus, we affirm Harris’s ICC conviction

pertaining to the January 19, 2015 encounter with Jones.

         However, we are compelled to reverse Harris’s ICC conviction for an

encounter with Jones that occurred on March 26, 2015. Jones testified that

on that date, she and several friends went to the Savoy Restaurant in

Pittsburgh. N.T. Hearing at 10. Jones saw Harris walk in, but he abruptly

turned around and left. Id. A short time later, the owner of the restaurant

approached Jones and “told [her] that [Harris] was outside in the parking

lot….”    Id.   The owner asked Jones if she was “okay” with Harris’s being

there. Id. Jones testified that she replied, “Yeah, but that’s not what the

court order says. The court order says we can’t be around each other. But I


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1
 Thus, we need not assess whether the evidence proved that the Penthouse
was Jones’ place of employment, or whether Harris’ conduct was abusive,
harassing, or amounted to an act of stalking.



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told [the owner], ‘This is your club,’ you know.    There’s nothing I can do

about it. And he turned around and walked away.” Id. Shortly thereafter,

Harris reentered Savoy and “sat adjacent to the area that [Jones and her

friends] were sitting in….” Id. Jones testified that Harris sat about ten feet

away from her, and remained there for “a half hour” before Jones left Savoy.

Id. at 13. While Jones testified that Harris looked at her, she stated that he

did not have any contact with her. Id. at 29, 30. Jones also confirmed that

she did not work at Savoy. Id. at 11-12.

      The Commonwealth also called Juandesha Purdie to the stand at the

ICC hearing. Purdie testified that she is a friend of Jones and was with Jones

at the Savoy on March 26, 2015. Id. at 33, 35. Purdie testified that she saw

Harris sit at a table near where she and Jones were sitting, but Harris was

not directly facing them and he at no point said anything to Jones. Id. at

43.   Purdie did not see Harris look at Jones or “give [] Jones any type of

gestures with his hands or with his face….” Id. Harris also did not approach

Purdie and Jones’s table. Id. at 43-44.

      Harris then testified at the ICC hearing.     He stated that when he

entered Savoy and saw Jones, he immediately “went downstairs” and told

the owner that he had to leave because he had “a problem” with Jones that

involved a PFA. Id. at 51. Harris testified that he did not tell the owner to

talk to Harris, but the owner stated that he was going to ask Jones to leave.

Id. The owner then went upstairs to where Jones was sitting, and when he

returned, he told Harris that “he talked to [Jones],” and she “said it wouldn’t

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be [a] problem.”     Id.   Harris testified that he then followed the owner

upstairs to the owner’s table, which was close to where Jones was sitting.

Id. at 51-52. Harris testified that he did not look at Jones or talk to her. Id.

at 52. He further stated that he understood the PFA order as prohibiting him

from contacting Jones, but that he did not think that simply being in the

same room with her amounted to ‘contact.’ Id. at 55-56.

      On appeal, Harris argues that the Commonwealth’s evidence was

insufficient to demonstrate that he violated the PFA order by coincidentally

encountering Jones at the Savoy Restaurant.       Preliminarily, Harris argues,

and we agree, that the evidence proved that Jones did not work at Savoy

and, therefore, he cannot be found to have violated the provision of the PFA

order precluding him from going to Jones’s place of employment. See Final

PFA Order, 11/18/14, at 2 ¶3. He also contends that nothing in his conduct

could be viewed as abusive, threatening, or an attempt to stalk Jones.

Again, we agree.

      Additionally, Harris avers that “[t]here is no evidence of record that

[he] had any contact or attempted contact with Jones.” Harris’s Brief at 13.

Harris also stresses that “presence and contact are not synonymous.” Id. at

15. Harris further contends:

      [I]t is axiomatic they are not synonymous as the PFA order
      delineates what type of conduct [Harris] is prohibited from
      performing in Jones’s presence via paragraph 1 [(relating to
      Harris not abusing, stalking, harassing, or using physical force
      on Jones)] and what location [Harris] is prohibited from
      traversing with respect to Jones via [p]aragraphs 2 and 3
      [(pertaining to Harris’s not being permitted to go to Jones’s

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      home or place of employment, respectively)]. If [Harris] was
      not allowed to be in the presence of … Jones ever, the PFA order
      should simply state [Harris] is prohibited from being in the
      presence of Jones at any location [where] she may be.
      Consequently, any suggestion that presence and contact are
      synonymous is absurd.

Id. at 15-16.

      Harris’s argument is compelling.         No provision of the PFA order,

including the ‘no-contact’ provision, precludes Harris from simply being

present   in    the   same   public   place   where    Jones   is   located.   The

Commonwealth attempts to read such a prohibition into the final PFA order

based on the following testimony by Jones:

      [Jones:] [A]t our first court hearing the judge [said] if [Harris]
      sees me, if he comes anywhere and I’m already there, he’s to
      turn around and leave. He’s not to stay. He’s not to talk to
      anybody. He’s supposed to leave.

N.T. Hearing at 11.      However, the record before us does not contain a

transcript from the hearing alluded to by Jones. It also does not contain any

court order stating that Harris is not permitted to be in the same location as

Jones, and Jones’s testimony alone is insufficient to demonstrate that the

court ordered Harris not to do so.

      Instead, the PFA order directs that Harris may not be at Jones’s home

or place of employment, and orders him not to contact Jones, either directly

or indirectly. Jones confirmed at the hearing that Harris did not contact her

at the Savoy Restaurant.        Thus, no evidence demonstrated that Harris

directly contacted Jones on March 26, 2015.           Additionally, we can find no

legal authority to support that Harris ‘indirectly contacted’ Jones by looking

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at Jones while sitting 10 feet away from her in a public place. We note that

Jones did not say that Harris continuously stared at her, or that he even

frequently looked in her direction, during the half-hour that they were both

in the Savoy.

      In any event, even if Harris’s conduct did constitute a de minimis

violation of the ‘no-contact’ provision of the PFA order, we would conclude

that the evidence failed to establish that Harris acted with ‘wrongful intent.’

This Court has emphasized that,

      [i]t is imperative that trial judges use common sense and
      consider the context and surrounding factors in making their
      determinations of whether a violation of a court order is truly
      intentional before imposing sanctions of criminal contempt. As
      we have stated:

         [A] determination of criminal contempt is a criminal
         conviction conferring on the contemnor all the negative
         characteristics of being a convicted criminal. The right to
         be free of the stigma of an unfounded criminal conviction
         is the hallmark of American jurisprudence.

Commonwealth v. Haigh, 874 A.2d 1174, 1177–78 (Pa. Super. 2005)

(emphasis in original) (quoting Commonwealth v. Baker, 722 A.2d 718,

722 (Pa. Super. 1998) (en banc)).

      Here, considering the context of Harris’s encounter with Jones at the

Savoy Restaurant, we cannot conclude that the evidence proved that Harris

intentionally violated the PFA order. There was no evidence indicating that

Harris knew Jones would be at Savoy. When Harris arrived at the restaurant




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and saw Jones, he immediately left, and returned only after Jones told the

owner of the restaurant that she was ‘okay’ with Harris’s being there.2

Harris testified that he was invited to sit at the owner’s table, which

happened to be close to where Jones was sitting. Jones’s friend, Juandesha

Purdie, confirmed that she did not see Harris talk to Jones, approach their

table, or gesture to Jones in any way.             Jones did not testify that Harris

exhibited any threatening conduct toward her, and Jones voluntarily

remained at the table near to him for approximately 30 minutes before

leaving the restaurant. Finally, Harris testified that he did not believe that

sitting in the same room as Jones would be a violation of the PFA order, as

long as he did not communicate with her.               See N.T. Hearing at 55-56.

Based on these facts, we would conclude that the evidence failed to prove

that Harris intentionally violated the ‘no-contact’ provision of the PFA order.

       In sum, the evidence was sufficient to prove that Harris violated the

PFA order on January 19, 2015, when he had contact with Harris at the

Penthouse nightclub, and did so with wrongful intent. Thus, we affirm his

ICC conviction based on that violation.            However, the evidence failed to

demonstrate that Harris contacted Jones at the Savoy Restaurant in March

of 2015, or that he did so with wrongful intent.         Consequently, Harris’s ICC

conviction for the March 26, 2015 incident is reversed, and his sentence of 6

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2
  We point out that there was no evidence that Harris told the owner of the
club to approach Jones and talk to her.



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months’ incarceration for that offense is vacated.      Because the court

imposed concurrent terms of 6 months’ incarceration for both of Harris’s ICC

convictions, our disposition does not upset the court’s overall sentencing

scheme, and we need not remand for resentencing.

      Judgment of sentence affirmed in part, reversed in part. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2016




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