J-A20042-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
DAJUAN SAUNDERS,                            :
                                            :
                    Appellant               :           No. 3255 EDA 2013

             Appeal from the Order entered on October 22, 2013
              in the Court of Common Pleas of Monroe County,
           Domestic Relations Division, No. CP-45-CR-0000851-2013

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 27, 2014



Supplemental Motion for Relief on Grounds of Double Jeopardy. We affirm.

        The trial court set forth the relevant factual and procedural history as

follows:

              On March 18, 2013, Janet Chanel Mosley (hereinafter
                                                          1
                                                            order

        [Saunders]. On March 21, 2013, Victim filed an indirect criminal
        contempt [Complaint]. This initial contempt [Complaint] was
        based on [Saunders] repeated phone calls to Victim, as well as
        threats communicated to Victim.



        the residence of Victim after the Monroe County Control Center
        advised that they had received a 911 hang-up call and that when
        contact was made, they could hear what sounded like a physical
        altercation. The Control Center eventually made contact with a

1
    See 23 Pa.C.S.A. § 6107(b).
J-A20042-14



     father were fighting and that his mother was injured.       Upon

     the stairwell leading to the upstairs of the home and noticed that

     on the outside of her nose, which was swollen and bleeding, that
     she had swelling on the left side of her face, that she was
     holding a large clump of hair, and that she was visibly upset and
     in a great deal of pain. Upon entering the residence, Corporal
     Smith saw blood all over the floor and a hole in the sheet rock at
     the bottom of the stairwell.

           Victim advised Corporal Smith that she was in her home
     cooking dinner and caring for her children when [Saunders], who
     is the father of her five (5) children, gained entry into the
     residence. Victim told Corporal Smith that the residence was
     locked when [Saunders] gained entry. Additionally, Victim said
     that [Saunders] did not live there, that he did not have a key to
     the residence and that on the date of the incident, [Saunders]
     was not invited into Victi

     the residence.

           After the argument began, [Saunders] physically attacked
     Victim and proceeded to drag her down the first set of stairs.
     [Saunders] then threw Victim down the second set of stairs, all
     while kicking, punching and beating Victim.         [Saunders]
     repeatedly punched Victim in the face and threw her into the
     wall, causing the hole in the sheet rock. While [Saunders] was
     attacking Victim, he called her names and threatened to kill her.
     Corporal Smith placed [Saunders] into custody and while doing


     down the stairs.

           On April 2, 2013, Victim filed a second indirect criminal
     contempt [C]omplaint. This [C]omplaint was based, in part, on
     telephone calls made by [Saunders] to Victim while [Saunders]
     was incarcerated for the March 27th assault. On April 22, 2013,
     a PFA contempt hearing was held [by the trial court]. After

     April 2, 2013 contempt filing and was sentenced to six (6)
     months [of] incarceration[,] to be served in the Monroe County



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J-A20042-14

     Correctional Facility and a fine in the amount of $300.00, plus
     court costs.[2]

                                ***

           On May 7, 2013, the Commonwealth filed a Criminal
     Information, charging [Saunders] with the following crimes: one
     (1) count of Aggravated Assault, one (1) count of Burglary, one
     (1) count of Criminal Trespass, one (1) count of Terroristic
     Threats with Intent to Terrorize Another, one (1) count of
     Stalking, one (1) count of Recklessly Endangering Another
     Person and two (2) counts of Simple Assault.[3]

           On June 13, 2013, [Saunders] filed a Motion for Habeas
     Corpus Relief. In his Motion, [Saunders] argue[d] that the
     evidence produced at the preliminary hearing was insufficient to
     sustain the charge of Aggravated Assault, and therefore, the
     Commonwealth ha[d] failed to establish a prima facie case. On
     August 1, 2013, [Saunders] filed a Supplemental Motion for
     Relief on Grounds of Double Jeopardy. In his Supplemental
     Motion, [Saunders] assert[ed] that he was previously found
     guilty of indirect criminal contempt based on a PFA [] violation
     and was sentenced to six (6) months [of] incarceration in the
     Monroe County Correctional Facility, as well as a monetary fine.
     [Saunders] argue[d] that as a result of this conviction, any
     further prosecution on the charges in the case sub judice should
     be barred based on the double jeopardy provisions of the state
     and federal constitutions, as well as the doctrines of res judicata
     and collateral estoppel. On August 2, 2013, a hearing was held

2

Order on March 19, 2013, and ordered him to have no contact with Victim.
See N.T., 4/22/13, at 20-21. Thereafter, a question arose as to whether
Saunders had been served with a copy of the PFA Order. Id. at 26.
Accordingly, a copy of the PFA Order was hand-delivered to Saunders on
March 28, 2013. Id. The trial court dismissed the first indirect criminal
contempt Complaint based on its determination that Saunders had not been
served with the PFA Order at the time of the violations alleged therein, and
that he was not actually served with the PFA Order until March 28, 2013.
Id. at 30-31.

3
  See Pa.C.S.A. §§ 2702(a)(1), 3502(a)(1), 3503(a)(1)(i), 2706(a)(1),
2709.1(a)(1), 2705, 2701(a)(1), (3).



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J-A20042-14



      2013, [Saunders] filed his brief in support of his Omnibus Pre-
      trial Motions.

Trial Court Opinion, 10/22/13, at 1-4 (footnotes omitted, footnotes added,

italics supplied).



Habeas Corpus Relief and his Supplemental Motion for Relief on Grounds of

Double Jeopardy.      On November 20, 2013, Saunders filed a Notice of

Appeal.4    Thereafter, he filed a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of Matters Complained of on Appeal.

      On appeal, Saunders raises the following issues for our review:

      1. Whether double jeopardy principles require dismissal of the
         pending criminal charges because those offenses were
         previously prosecuted in the PFA criminal contem[pt]
         proceedings?

      2. Whether under principles of res judicata and collateral
         estoppel, the pending burglary and criminal trespass charges
         should be dismissed as the service of notice barring
         [Saunders] from entering upon the premises pursuant to the
         PFA Order was litigated and found in favor of [Saunders] at
         the prior hearing?

Brief for Appellant at 4 (capitalization omitted, italics supplied).

      In his first claim, Saunders contends that he cannot be prosecuted in

this proceeding for any offense that he was prosecuted for in the criminal

contempt proceeding.      Id. at 8.   Saunders asserts that the record in the


4
  A defendant may appeal an order denying his pretrial motion for relief
under the double jeopardy clause. See Commonwealth v. Starks, 416
A.2d 498, 499 n.1 (Pa. 1980).


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J-A20042-14

contempt proceeding did not clearly indicate the offenses at issue, and that

the offenses at issue in that proceeding are not necessarily the same

offenses for which he was found guilty of criminal contempt.       Id. at 9.



offense[s] at issue in the contempt proceeding were the offenses for which

                                                                   does not

attach because the offenses for which he was convicted differ from the

present criminal charges.   Id. at 10.   Saunders asserts that the record is

clear that he was tried in the contempt proceedings for the same offenses at

issue in the present action.   Id.   Saunders claims that, because he was

already placed in jeopardy for those offenses at the contempt prosecution,

he cannot be prosecuted for them again in this proceeding. Id. at 12.

                                                                     against

double jeopardy was infringed is a question of law. See Commonwealth v.

Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010).         Hence, our scope of

review is plenary, and our standard of review is de novo. Id.

     In determining whether a prosecution is barred by double jeopardy, a



                            Blockburger v. United States, 284 U.S. 299

(1932). See Commonwealth v. Yerby, 679 A.2d 217, 219 (Pa. 1996).

     Under this test, if each offense requires proof of an element that
     the other does not, the offenses are separate and double
     jeopardy does not apply.        If, however, the offenses have
     identical elements, or if one offense is a lesser included offense


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J-A20042-14

     of another, the subsequent prosecution is barred.         Stated
     another way, unless each of the two offenses for which the
     defendant is punished or tried contains an element not contained
     in the other, they are the same offenses and successive
     prosecution is barred.

Id. at 219 (citing Blockburger, 284 U.S. at 304) (internal citation omitted).

     However, the United States Supreme Court has been unable to garner

a majority vote as to the precise application of the same-elements test. See

Yerby, 679 A.2d at 219. Accordingly, the Court in Yerby held that, in the

context of a criminal contempt violation followed by criminal charges based

on the same events giving rise to the contempt violation,

     the more sound approach, and the one that adheres most to the
     concerns behind the protection against successive prosecutions,
     is one that looks to the specific contempt order and the elements
     of the violated condition(s) of that order. In other words, we
     must look to the specific offenses at issue in the contempt
     proceeding and compare the elements of those offenses with the
     elements of the subsequently charged criminal offenses. If they
     are the same, or if one is a lesser included offense of the other,
     double jeopardy attaches and the subsequent prosecution is
     barred. The focus, then, is on the offense(s) for which the
     defendant was actually held in contempt.

Id. at 221.

     Application of the Yerby test requires that we review the contempt

proceeding, which was premised on both the March 21, 2013 and April 2,

2013 indirect criminal contempt Complaints.        Notably, the trial court

determined that, despite being advised of the PFA Order by his parole officer

on March 19, 2013, Saunders was not served with a copy of the PFA Order

until March 28, 2013.   See N.T., 4/22/13, at 30-31.    For this reason, the



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J-A20042-14

trial court concluded that Saunders could not be held in contempt of the PFA

Order for any of his actions prior to his receipt of the PFA Order on March

28, 2013.   Id. at 31-32.   Accordingly, the trial court found Saunders in

contempt based solely on the phone calls he made to Victim from jail

between March 28, 2013 and April 2, 2103, when the second indirect

criminal Complaint was filed. Id. at 32-33.

     Here, each of the criminal charges pending against Saunders arose

from the incidents that occurred on March 27, 2013, prior to service of the



based on any of the events of March 27, 2013, double jeopardy is not



     In his second claim, Saunders contends that the collateral estoppel

principles of the double jeopardy clause prohibit the prosecution of the

burglary and criminal trespass charges. Brief for Appellant at 12. Saunders

asserts that an ultimate issue in a burglary or criminal trespass prosecution



Id. at 13 (citing 18 Pa.C.S.A. §§ 3502, 3505). Saunders further contends



proceeding, and the prosecution can now not litigate that issue again in the



burglary and criminal trespass charges must be dismissed because the

prosecution cannot establish that he had received notice that he was not



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J-A20042-14

                                                     i.e., via his receipt of the

PFA Order) prior to the date when those offense allegedly occurred. Id. at

14.

      Saunders failed to sufficiently raise this issue in his Pa.R.A.P. 1925(b)

Concise Statement of Matters Complained of on Appeal. As such, this issue

is waived.   See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)

(stating that, if an appellant is directed to file a concise statement of matters

to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised

in that statement are waived).5

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




5




that his receipt of the PFA Order is the only method by which the


by the trial court at the contempt hearing, and remains to be determined by
the trier of fact.


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