J-A19026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

DISSENTING MEMORANDUM BY OLSON, J.:           FILED SEPTEMBER 26, 2014

     Because I believe that the learned majority views the evidence in the

light most favorable to Appellant, in contravention of our clear standard of

review, and because I believe there was sufficient evidence to support the




* Former Justice specially assigned to the Superior Court.
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                                   intent to support both indirect criminal

contempt convictions, I respectfully dissent.

      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,



                                                                           at 1.

Appellant argues that his communications with Joy N. Kochman (Ms.



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

2-

reason for commu

                         Id. at 3. He claims that the subject text message

and request for communication through his daughter at a custody exchange

                                                              where he would

                          Id. at 5. As such, Appellant contends that the



                                                   Id. at 4. I disagree.

      Our standard of review is well-settled:

        In reviewing the sufficiency of the evidence, we view all the
        evidence admitted at trial in the light most favorable to the
        Commonwealth, as verdict winner, to see whether there is
        sufficient evidence to enable the factfinder to find every
        element of the crime beyond a reasonable doubt. This
        standard is equally applicable to cases where the evidence


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         is circumstantial rather than direct so long as the
         combination of the evidence links the accused to the crime
         beyond a reasonable doubt. Although a conviction must be
         based on more than mere suspicion or conjecture, the
         Commonwealth need not establish guilt to a mathematical
         certainty. Moreover, when reviewing the sufficiency of the
         evidence, this Court may not substitute its judgment for
         that of the fact-finder; if the record contains support for the
         convictions they may not be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013) (internal

citations, quotations, and brackets omitted).

      As the majority sets forth, 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
         criminal contempt and punish the defendant in accordance
         with law.

23 Pa.C.S.A. § 6114(a).



designed to seek punishment for violat

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:

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        [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 [Ms. Kochman], or any other person
        protected under this order, by telephone or by any other
        means, including through third persons.

                             *        *            *


        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.

      Thereafter, on May 22, 2013, a custody order was entered by consent

of the parties providing, in pertinent part:

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

Order, 5/22/2013, at 3.

      The   trial   court   determined    that   Appellant   engaged     in    two

communications with Ms. Kochman that constituted violations of the PFA

order. The first communication was

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 [Ms.
        Kochman]. With regard to wrongful intent, the [trial court

                                                 -being or custody
        schedule, but instead was to discuss with Ms. Kochman the
        outstanding issues regarding their jointly-held real property

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          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.



conclusions.

      I reviewed 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 at a Sheetz

convenience store, Appellant communicated with Ms. Kochman through the

                                       2013, at 10-11, 17-18. In reading the

PFA order and the custody consent order together, Appellant was not




for pur




Appellant permitted contact with Ms. Kochman through a third party.

Appellant does not dispute that he had notice of the PFA order and the

custody consent order and Appellant admitted that he initiated contact with

Ms. Kochman through their 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




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      As for the fourth element needed to establish indirect criminal




Regarding the incident at Sheetz, Ms. Kochman testified that Appellant was




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

                  Id. at 11. She further testified that Appellant stated:




        and
        are going to be turning me in for PFA violations. [To which

        you in.

Id. at 14.

                                                                    explained

his reasons for communicating with Ms. Kochman 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



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J-A19026-14


        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, [Ms. Kochman] stepped out of her car and
        walked to the back of her car. I did not step any closer to



        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



                                                                             -

being or custody schedule, but instead was to discuss with Ms. Kochman the

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

                                                       on. I would reach the




determinations when the record supports those determinations.       Here, the

above-quoted testi

up financial plans for the former marital residence. Although, at the time of




remote and tangential.      I agree with the trial court that Appellant

communicated with wrongful intent through a third party. Thus, there was




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ample support in the record to establish each element of indirect criminal

contempt at docket number No. MD-0000197-2013.

      Next, I examined the text message sent on July 13, 2013. 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 Cynthia 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 orders

involved.    Moreover, Appellant readily admits that he volitionally sent the

text message at issue.      Appellant contends that the orders were not clear

because he was permitted to communicate via text message for legitimate

issues concerning the children.      In conjunction, Appellant claims the trial



have been trying to gain an economic advantage because there was no

                                                                  communication




Ms. Kochman the outstanding issues regarding their jointly-held real

property and to impress upon her



error. While relocation with the children potentially loomed on the horizon,


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the main thrust of the communication was financially related. Ms. Kochman



divorce. N.T., 7/29/2013, at 5.     Appellant was prodding Ms. Kochman to



issues surrounding the house had to be resolved before relocation could be



for indirect criminal contempt based upon text message communication at

docket number No. MD-000212-2013.

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

communications, Ms. Kochman was represented by a divorce attorney,

Cynthia Kramer, Esquire. N.T., 7/29/2013, at 9.         As the above-mentioned

communications show, Appellant had submitted paperwork regarding the

sale of the marital home to Attorney Kramer, but then communicated with

Ms. Kochman about the home, nevertheless.          As previously stated, Ms.



                                             alked to your attorney yet. Why

                                             Id. at 14.         Appellant knew to



anyway when financial matters surrounding the house were progressing too

slowly for

harassing in nature and, thus, satisfy wrongful intent under the indirect

criminal contempt statute.




                                    -9-
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its findings that [Appellant] had violated the PFA order [at issue] on 11




that Appellant communicated with Ms. Kochman for the purpose of abusing,



Majority Memorandum, at 6.             The fact that Appellant was convicted of

violating the PFA order at issue 11 times prior to the communications at

issue

most    recent    communications        constituted   harassment   and,   therefore,

Appellant made them with wrongful intent.

        Based upon our deferential standard of review and the evidence

presented, I believe there was more than sufficient proof to sustain




judgment of sentence.1

____________________________________________


1
    As the learned majority reversed the judgment of sentence, they did not


I would find that the issue has been waived. Appellant questions the
discretionary aspect of his sentence. However, in order to preserve this
issue for appeal, Appellant was required to raise the issue at his sentencing
hearing or in a post-sentence motion. As he did neither, the issue was not
preserved. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)

(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

if they are not raised at the sentencing hearing or in a motion to modify the
sentence imposed




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